FAUSSETE v. [And A Second & Third-Party Action] (1997)

Order, Supreme Court, New York County (Norman Ryp, J.), entered on or about June 24, 1996, which, insofar as appealed from, granted defendants-respondents' motion for summary judgment dismissing defendants-appellants' cross claim for indemnification or contribution, unanimously affirmed, with costs.

Appellants' cross claim against respondents was properly dismissed upon plaintiff's sworn statement that he was injured on appellants' property, not, as he originally alleged, on respondents' property;  appellants' failure to come forward with evidence to the contrary;  and plaintiff's discontinuance with prejudice as against respondents.   Since the accident could not have occurred at both locations, there is no possibility that both appellants and respondents contributed to plaintiff's injuries, and therefore no possible right to contribution (see, Stone v. Williams, 64 N.Y.2d 639, 642, 485 N.Y.S.2d 42, 474 N.E.2d 250;  Smith v. Sapienza, 52 N.Y.2d 82, 87, 436 N.Y.S.2d 236, 417 N.E.2d 530).   Appellants will have ample opportunity to prove that the accident did not occur on their property, in which event they will not be held liable, and there will be no need for contribution from respondents or anyone else.

MEMORANDUM DECISION.