ELKMAN v. << (1998)

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered April 4, 1997, which, in a third-party action by a landlord against an adjacent fish retailer for indemnification or contribution in plaintiffs tenants' main action against the landlord for breach of the warranty of habitability due to fish odors, granted the fish retailer's motion for summary judgment only to the extent of dismissing the claim for contribution, and denied the landlord's motion for summary judgment on the issue of liability on its claims for contribution and indemnification, unanimously affirmed, without costs.

 The claim for contribution was properly dismissed on the ground that the only damages alleged by the tenants are for economic loss resulting from a breach of contract (CPLR 1401;  see, Board of Educ. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 26, 523 N.Y.S.2d 475, 517 N.E.2d 1360), i.e., the warranty of habitability under Real Property Law § 235-b.   However, the claim for indemnification was properly sustained, and the parties' respective motions for summary judgment thereon properly denied.   Common-law indemnification is available to one who has committed no wrong but is held liable to the injured party because of some relationship with the tortfeasor “or obligation imposed by law” (Glaser v. M. Fortunoff of Westbury Corp., 71 N.Y.2d 643, 646, 529 N.Y.S.2d 59, 524 N.E.2d 413), such as that upon a landlord under Real Property Law § 235-b.   Whether there were any structural defects in the construction or ventilation of the subject building that could have facilitated odors reaching the tenants' apartment, and, accordingly, whether the landlord's fault contributed to the allegedly noxious condition of the apartment, are issues of fact left unresolved on this record.   We have considered the parties' remaining arguments for affirmative relief and find them to be without merit.

MEMORANDUM DECISION.