GREAT AMERICAN INSURANCE COMPANIES v. BEARCAT FINANCIAL SERVICES INC (2011)

GREAT AMERICAN INSURANCE COMPANIES, et al., Plaintiffs, v. BEARCAT FINANCIAL SERVICES, INC., et al., Defendants,
Patrick Hayes, Third–Party Plaintiff–Appellant, v. Dresdner, Kleinwort, Wasserstein Services, LLC, Third–Party Defendant–Respondent.

Decided: December 20, 2011

GONZALEZ, P.J., MAZZARELLI, ANDRIAS, SWEENY, ROMÁN, JJ.

Law Offices of Peter A. Hurwitz, PLLC, New City (Peter A. Hurwitz of counsel), for appellant. Orrick, Herrington & Sutcliffe LLP, New York (Ayanna Lewis–Gruss of counsel), for respondent.

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered May 3, 2010, which, to the extent appealed from as limited by the briefs, granted the motion of third-party defendant Dresdner to dismiss the third-party complaint, award Dresdner its costs, and impose sanctions on defendant/third-party plaintiff Hayes and his counsel, unanimously affirmed, with costs.

Because the first-party complaint alleges that Hayes is liable based only on his own wrongdoing, his third-party claim that he is entitled to common-law indemnification from Dresdner does not state a cause of action (Mathis v. Central Park Conservancy, 251 A.D.2d 171, 172 [1998] ). Accordingly, the third-party complaint was properly dismissed.

Because the third-party claim was plainly defective, the motion court providently exercised its discretion in determining that it was frivolous and imposing sanctions and costs (see 22 NYCRR 130–1.1; Pickens v. Castro, 55 AD3d 443 [2008] ).

We have considered Hayes's remaining contentions and find them unavailing.

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