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Residential Board of Managers of Platinum v. 46th Street Development, LLC

154 A.D.3d 422 Court N.Y. App. Div. Decision date 2017-10-03 English

Judges Concur — Friedman, J.P., Manzanet-Daniels, Kapnick, Kern and Singh, JJ.

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p. 422
The Residential Board of Managers of Platinum, Respondent, v 46th Street Development, LLC, et al., Defendants. (And a Third-Party Action.) Plaza Construction LLC, Formerly Known as Plaza Construction Corp., Second Third-Party Plaintiff-Respondent, v Del Salvio Masonry Corp. et al., Second Third-Party Defendants, and V.A.L. Floors, Inc., Second Third-Party Defendant-Appellant.
[62 NYS3d 99]

Order, Supreme Court, New York County (David Benjamin Cohen, J.), entered on or about July 22, 2016, which denied the motion of second third-party defendant V.A.L. Floors, Inc. to dismiss the second third-party complaint as against it, unanimously affirmed, without costs.

V.A.L.’s contention that the second third-party complaint is time-barred is without merit. “The statute of limitations on a claim for indemnity or contribution accrues only when the

p. 423
person seeking indemnity or contribution has paid the underlying claim” (Tedesco v A.P. Green Indus., Inc., 8 NY3d 243 , 247 [2007]). There is no indication in the record that second third-party plaintiff (who is also a third-party defendant) has paid anything to third-party plaintiff. Thus, its time to sue “has not even begun to run” (Varo, Inc. v Alvis PLC, 261 AD2d 262 , 265 [1st Dept 1999], lv denied 95 NY2d 767 [2000]).

While it would have been better practice for V.A.L. to have explicitly made its motion pursuant to CPLR 3211 (a) (1) and/or (7) in addition to paragraph (5), it did argue in its moving papers that its contract cannot reasonably be construed to require it to indemnify second third-party plaintiff. Accordingly, we will consider this contention, and we find it unavailing. In Inman v Binghamton Hous. Auth. ( 3 NY2d 137 [1957]), on which V.A.L. relies, the plaintiff complained about the design of a stoop, rear door, and step (i.e., the architects’ work), not about how they were built (the builder’s responsibility) (see id. at 143 ). Since the claims “did not arise from any defect in workmanship or in any material used” (id. at 147), the indemnification clause, which limited the builder’s obligation “to injuries ‘arising out of or in connection with the . . . Work,’ ” did not apply (id.). By contrast, if V.A.L. is eventually obliged to indemnify second third-party plaintiff, the indemnification will have to arise out of defects in the wood flooring, which was V.A.L.’s work.

In its reply brief below, V.A.L. contended that a survey prepared by nonparty RAND Engineering & Architecture showed that any problems with the wood floors were caused by water infiltration, not by defects in its work. However, an argument that is not raised until a reply brief should not be considered (see e.g. Travelers Indem. Co. v LLJV Dev. Corp., 227 AD2d 151 , 154 [1st Dept 1996]). Were we to reach the merits, we would find that, assuming the RAND survey constituted documentary evidence, it did not “conclusively establish[ ] a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83 , 88 [1994]).

Concur — Friedman, J.P., Manzanet-Daniels, Kapnick, Kern and Singh, JJ.

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