Raquet v. Braun

OPINION OF THE COURT

In Zanghi v Niagara Frontier Transp. Commn. ( 85 NY2d 423 ), we held that the cause of action for injured firefighters that was authorized by General Municipal Law former § 205-a is available only against parties who were in possession or control of the premises at the time the accident occurred.^[1] This appeal, which involves the parties to one of the companion cases in Zanghi, raises the question of whether a person properly held liable under former section 205-a may seek indemnification or contribution from parties who were not in possession or control of the premises but who were allegedly responsible, in whole or in part, for the accident. We conclude

As set forth in our earlier opinion ( 85 NY2d, at 437 ), one firefighter (Mitchell Spoth) was killed and another (Frank Raquet) was injured when the canopy roof on a building addition and a portion of the addition’s masonry wall collapsed outward during the course of a November 1984 fire. At the time of the fire, the building was owned by defendant Leonard Zane and occupied by defendant lessees W.N.Y. Carpet Factory Outlet, Inc., Kenny Carpets, Inc. and Kenny Enterprises, Inc.

Raquet and Spoth’s representative sued Zane, the tenant defendants and the contractors who had designed and built the building’s addition (Carol Braun, John Braun, J.M. Braun Builders, Inc. and Benito Olivieri). Among the asserted causes of action were claims based on General Municipal Law former § 205-a for violations of State and local building code provisions. The tenant defendants asserted cross claims for indemnification and contribution against the contractor defendants, and defendant Zane counterclaimed against all of the contractor defendants except defendant Benito Olivieri.

On appeal to this Court from an order dismissing the plaintiffs’ claims against the building owner and the contractor defendants, we reinstated the General Municipal Law § 205-a causes of action against the owner, holding that "the alleged building code violations may * * * create firefighting hazards upon which section 205-a liability may be based” ( 85 NY2d, at 443 ). We stated, however, that although the building owner could be held directly liable under the statute, the defendant contractors could be held liable "only if they were in control of the premises 'at the time of [the firefighters’] injury’ ” (id., at 445, quoting General Municipal Law former § 205-a). Accordingly the dismissal of the plaintiffs’ claims against the defendant contractors was upheld. Finally, we also stated that, as tenants in possession at the time of the fire, the tenant defendants were "parties in control of the premises against whom [statutory] liability may be asserted” ( 85 NY2d, at 445, n 2 ).^[2]

Following our decision, defendant Zane and the tenant defendants moved in the Supreme Court for permission to

Initially, we note that our prior decision in this case did not constitute a dismissal on the merits of the cross claims against the contractor defendants. Our disposition was limited to a holding that the plaintiff firefighters could not recover against the contractor defendants. The viability of the indemnification and contribution claims against those parties was not raised in either of the courts below or in our Court, and nothing in our opinion forecloses those claims.^[3]

As to the merits of those claims, we begin with the well-established principle that a defendant may seek contribution from a third party even if the injured plaintiff has no direct right of recovery against that party, either because of a' procedural bar or because of a substantive legal rule (Klinger v Dudley, 41 NY2d 362 ; Dole v Dow Chem. Co., 30 NY2d 143 ; cf., L 1996, ch 635 [amending Workers’ Compensation Law § 11]). A contribution claim can be made even when the contributor has no duty to the injured plaintiff (Sommer v Federal Signal Corp., 79 NY2d 540 , 559; Garrett v Holiday Inns, 58 NY2d 253 , 261). In such situations, a claim of contribution may be asserted if there has been a breach of a duty that runs from the contributor to the defendant who has been held liable (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559 , 568, n 5; Garrett v Holiday Inns, supra, at 261 ; Nolechek v Gesuale, 46 NY2d 332 ; see also, Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599 ).

Here, Zane and the tenant defendants have been asked to answer in damages for the injuries plaintiff firefighters sustained. The only basis offered by the contractor defendants for the summary dismissal of Zane’s and the tenant defendants’ claims against them was their assumption that the rationale in Zanghi (supra) foreclosed their liability to any party under any legal theory. Since Zanghi poses no such bar to the contractor defendants’ liability to other party defendants and there exist legal theories other than section 205-a on which such liability could be based, the Supreme Court’s affirmed decision to grant the cross motions for summary dismissal of all claims against the contractor defendants was error warranting reversal.

We note that our decision in this appeal represents a rejection of contractor defendant Olivieri’s alternative argument that summary judgment in his favor was also warranted because of the absence of evidence to establish his responsibility for the construction defect that led to the roof collapse. Olivieri’s theory is that as the masonry contractor responsible for the construction of the building’s new walls, he had no role in the design or creation of the canopy roof that ultimately collapsed. However, the proof tendered in response to the dismissal motions included affidavits from which a fact finder could infer that Olivieri had failed to leave openings or "pockets” in the wall to allow for its proper connection to the mansard and internal roof structure. In the posture of the case at the time Olivieri’s summary judgment motion was made, this proof was sufficient to raise a triable question of fact as to defendant Olivieri’s role in and responsibility for the roof collapse.^[4]