Langner v. Eschwege

Order, Supreme Court, New York County, entered on June 9, 1971, granting the motion of the third-party defendant-attorney to dismiss the third-party complaint, unanimously reversed, on the law, without costs and without disbursements, and the motion denied. Relevant facts are set forth in this court’s memorandum ( 39 A D 2d 652 ) published simultaneously herewith. In the third-party complaint, which seeks indemnity, defendant attorney alleges that if there is liability to plaintiffs, it is due to the primary negligence of the third-party defendant. The third-party defendant’s position, which was adopted by Special Term, that defendant is charged solely with active negligence and hence is precluded from seeking indemnification, no longer constitutes a bar to such relief. The so-called active-passive dichotomy has now become a relic of the past, being replaced by new guidelines based upon shared responsibility in apportioning liability. (Dole v. Dow Chem. Co., 30 N Y 2d 143 ; Wood v. City of New York, 39 A D 2d 534 .) Concur — Kupferman, J. P., ^IcNally, Tilzer and Capozzoli, JJ.