176 WEST 87TH STREET OWNERS CORP v. D & B Engineers and Architects, P.C., Defendant-Appellant. (2023)

Order, Supreme Court, New York County (Lori Sattler, J.), entered June 30, 2022, which, to the extent appealed from, denied defendant D & B Engineers and Architects, P.C.’s (D & B) motion for summary judgment dismissing the complaint and all cross-claims as against it, and granted defendant John Franco Contractors Inc.’s (Franco) motion for leave to amend its answer to assert a cross-claim for contribution against D & B, unanimously modified, on the law, to grant that portion of D & B's motion for summary judgment dismissing all cross-claims as against it for common law indemnification, and otherwise affirmed, without costs.

The motion court properly denied D & B's motion for summary judgment dismissing the complaint.  There are triable issues of fact as to whether D & B assumed a duty to perform work related to the demolition of the kitchen, from where the gas pipe was removed, and whether D & B was in fact involved in such work or the supervision thereof (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]).

Given the foregoing, the court also properly denied D & B's motion to the extent that it sought dismissal of the cross-claims against it for contribution (see generally Raquet v. Braun, 90 N.Y.2d 177, 183 [1997]).  However, to the extent any defendant has asserted a cross-claim against D & B for common law indemnification, that cross-claim should have been dismissed as those defendants are not being held vicariously liable (see McCarthy v. Turner Const.  Inc., 17 NY3d 369, 377–378 [2011] [“a party cannot obtain common-law indemnification unless it has been held to be vicariously liable without proof of any negligence or actual supervision on its own part”]).

The court providently exercised its discretion in granting Franco's motion for leave to amend its answer to assert a cross-claim for contribution against D & B (see CPLR 3025[b]);  Kocourek v. Booz Allen Hamilton Inc., 85 AD3d 502, 504 [1st Dept 2011]).  Mere delay was insufficient to defeat the motion for leave to amend, and D & B failed to establish prejudice (Kocourek, 85 AD3d at 504).