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Esteva v. Nash

55 A.D.3d 474 Court N.Y. App. Div. Decision date 2008-10-30 English

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p. 474
Paul A. Esteva et al., Plaintiffs, v Kevin J. Nash, Esq., et al., Defendants. Kevin J. Nash, Esq., et al., Third-Party Plaintiffs-Appellants, v Michelle Ferguson, Esq., et al., Third-Party Defendants, and Fundex Capital Corporation, Third-Party Defendant-Respondent.
[866 NYS2d 186]—

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 9, 2007, which, to the extent appealed from as limited by the briefs, granted the motion of third-party

p. 475
defendants Greenwald and Fundex to dismiss the third-party complaint against them, and denied third-party plaintiffs’ cross motion to file a proposed amended third-party complaint for common-law indemnification for the alleged aiding and abetting of a breach of fiduciary duty, unanimously affirmed, with costs.

As we have previously held, “A party sued solely for its own alleged wrongdoing, rather than on a theory of vicarious liability, cannot assert a claim for common law indemnification” (Mathis v Central Park Conservancy, 251 AD2d 171 , 172 [1998]). Here, the complaint did not propound any theory that defendants were vicariously liable to plaintiffs by dint of third-party defendant Fundex’s actions. As a result, defendants are not entitled to the common-law indemnification they seek in the third-party action (see Bleecker St. Health & Beauty Aids, Inc. v Granite State Ins. Co., 38 AD3d 231 , 233 [2007]).

Furthermore, the court properly dismissed the contribution claim against Fundex for aiding and abetting a breach of fiduciary duty, and properly denied defendants’ cross motion for leave to amend their third-party complaint. Indeed, neither the original third-party complaint nor the proposed amended version alleges any facts sufficient to suggest that Fundex provided substantial assistance to plaintiffs in their alleged breach of fiduciary duty. The aiding-and-abetting claim must thus fail (see Global Mins. & Metals Corp. v Holme, 35 AD3d 93 , 101 [2006], lv denied 8 NY3d 804 [2007]). Concur—Lippman, P.J., Mazzarelli, Williams, Buckley and Renwick, JJ. [See 2007 NY Slip Op 30584 (H).]

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