

Ponce v Miao Ling Liu (2014 NY Slip Op 08617)





Ponce v Miao Ling Liu


2014 NY Slip Op 08617


Decided on December 10, 2014


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on December 10, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
SHERI S. ROMAN, JJ.


2014-03452
 (Index No. 700809/12)

[*1]Juan Ponce, et al., plaintiffs, 
vMiao Ling Liu, defendant third-party plaintiff-appellant; Nexa Gomez, third-party defendant-respondent.


The McCauley Law Firm, LLP, New York, N.Y. (David F. Tavella of counsel), for defendant third-party plaintiff-appellant.
Roy Silverberg, Elmhurst, N.Y., for third-party defendant-respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals from an order of the Supreme Court, Queens County (McDonald, J.), dated December 24, 2013, which granted that branch of the motion of the third-party defendant which was pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint.
ORDERED that the order is affirmed, with costs.
On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts alleged in the pleading as true, accord the pleader the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87; Lizjan, Inc. v Sahn Ward Coschignano & Baker, PLLC, 117 AD3d 914, 915). "[E]videntiary material may be considered to  remedy defects in the [pleading]'" (Dana v Shopping Time Corp., 76 AD3d 992, 994, quoting Rovello v Orofino Realty Co., 40 NY2d 633, 636; see Leon v Martinez, 84 NY2d at 88; Way v City of Beacon, 96 AD3d 829, 830-831). 
Here, the allegations in the third-party complaint, even as amplified by the evidentiary material submitted in opposition to the third-party defendant's motion, were insufficient to state a cause of action for indemnification. "[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather  is a separate duty owed the indemnitee by the indemnitor'" (Raquet v Braun, 90 NY2d 177, 183, quoting Mas v Two Bridges Assocs., 75 NY2d 680, 690; see Lovino, Inc. v Lavallee Law Offs., 96 AD3d 909, 909-910). The third-party complaint does not allege the existence of any duty owed by the third-party defendant to the defendant third-party plaintiff (see Raquet v Braun, 90 NY2d at 183; Greenberg v Blake, 117 AD3d 683, 684; Balkheimer v Spanton, 103 AD3d 603, 604; Seldin v Smith, 76 AD3d 623, 625). Moreover, the third-party complaint, as supplemented by the evidentiary material, also failed to state a cause of action for contribution (see Raquet v Braun, 90 NY2d at 183; Seldin v Smith, 76 AD3d at 625).     
The defendant third-party plaintiff's remaining contentions are either without merit, or not properly before this Court.
Accordingly, the Supreme Court properly granted that branch of the third-party defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint.
LEVENTHAL, J.P., HALL, AUSTIN and ROMAN, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


