BOARD OF MANAGERS OF PORTER HOUSE CONDOMINIUM v. Antonio Di Oronzo, R.A., Defendant–Appellant–Respondent. (2021)

Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered on or about February 13, 2020, which, insofar as appealed from, denied defendant Antonio Di Oronzo, R.A.'s motion to dismiss all cross claims against him for common-law indemnification to the extent based on the nuisance cause of action, granted Di Oronzo's motion to dismiss defendant Delshah 60 Ninth, LLC's cross claim against him for common-law indemnification arising from a breach of contract, and granted defendant Delshah's cross motion to convert its cross claims against Di Oronzo to a third-party complaint and to add a new party, Bluarch LLC, as an additional third-party defendant, unanimously modified, on the law, to deny Di Oronzo's motion to dismiss Delshah's cross claim against him for common-law indemnification in connection with the breach of contract claim, and otherwise affirmed, without costs.

Di Oronzo argues correctly that, in general, common-law indemnification is not available when the primary claim alleges breach of contract resulting from the breaching party's own conduct (Chatham Towers, Inc. v. Castle Restoration & Constr., Inc., 151 A.D.3d 419, 56 N.Y.S.3d 74 [1st Dept. 2017].).  However, in the construction context, a party may seek common-law indemnification from a construction professional where “the [party] itself was compelled to discharge a duty that it had delegated fully to, and that should have been discharged by, the [professional], whose negligence was the actual cause of the loss” (17 Vista Fee Assoc. v. Teachers Ins. & Annuity Assn. of Am., 259 A.D.2d 75, 78, 693 N.Y.S.2d 554 [1st Dept. 1999]).

Moreover, Delshah's common-law indemnification claim against Di Oronzo is not limited to the underlying tort claims but applies as well to the breach of contract claim (id. at 81, 693 N.Y.S.2d 554).  The complaint in the main action specifically alleges that plaintiff communicated to Delshah its concern that construction according to Di Oronzo's elevation drawings would result in a violation of the zoning lot development agreement between plaintiff and Delshah.

Di Oronzo argues for the first time on appeal that the common-law indemnification claim should be dismissed insofar as it is based on the claim of professional negligence and Delshah's allegation that it delegated all responsibility to Di Oronzo and his firm, Bluarch.  As this is not a purely legal argument but involves issues of fact, we may not consider it (Watson v. City of New York, 157 A.D.3d 510, 69 N.Y.S.3d 294 [1st Dept. 2018]).

The motion court correctly declined to consider Di Oronzo's argument, raised for the first time in reply, that the professional negligence claim against him and his firm should be dismissed (see Lee v. Law Offs. of Kim & Bae, P.C., 161 A.D.3d 964, 965–966, 77 N.Y.S.3d 676 [2d Dept. 2018]).  Di Oronzo argues that he properly argued for dismissal of the professional negligence claim in his opposition to Delshah's cross motion to convert the cross claims to third-party claims.  However, that argument would be limited to contending that the cross claims could not be converted because they were palpably lacking in merit, and, as discussed, at this stage we cannot say that they are devoid of merit (see Cruz v. Brown, 129 A.D.3d 455, 11 N.Y.S.3d 33 [1st Dept. 2015]).

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