PRIVILEGE UNDERWRITERS RECIPROCAL EXCHANGE v. << (2026)

Supreme Court, Appellate Division, First Department, New York.

PRIVILEGE UNDERWRITERS RECIPROCAL EXCHANGE, as Subrogee of Thomas Peterffy et al., Plaintiffs–respondents, v.
SBP NEW YORK LLC, Defendant–appellant, Pembrooke & Ives Inc. et al., Defendants–respondents, Sth Painting, Inc. et al., Defendants.[a Third–party Action] _ Sbp New York LLC, Second Third–party Plaintiff, v.
I.J. Peiser's Sons, Inc., Second Third–party Defendant. _ Sbp New York LLC, Third Third–party Plaintiff–appellant, v. Pembrooke & Ives Inc. et al., Third Third–party Defendants–respondents, Sth Painting, Inc. et al., Third Third–party Defendants.

Index No. 152866

Decided: November 05, 2026

Scarpulla, J.P., Gesmer, Rodriguez, Michael, Hagler, JJ.

Kennedys Law LLP, New York (Ian J. Antonoff of counsel), for appellant.

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Kahana & Feld, LLP, New York (John F. Watkins of counsel), for Pembrooke & Ives Inc., respondent.

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about September 2, 2025, which, to the extent appealed from as limited by the briefs, granted defendant Pembrooke & Ives Inc.'s motion to dismiss defendant SBP New York LLC's common-law indemnification cause of action as against it, unanimously affirmed, with costs.

This subrogation action arises from an April 1, 2018, fire in a Manhattan condominium. The complaint alleges the following facts. The owners of the condominium unit where the fire began had hired defendant SBP as construction manager and defendant Pembroke as interior designer for their apartment renovation project. The fire started when sawdust left in a shop vac ignited. The shop vac belonged to SBP. SBP had agreed to indemnify the condominium association from loss resulting from negligence by SBP or its subcontractors, consultants, or vendors. The complaint further alleged that Pembrooke or his subcontractors left oil-stained rags in the apartment. Plaintiffs did not allege that SBP and Pembrooke worked directly with each other or that either hired the other. The phrase “vicarious liability” does not appear in the complaint.

SBP filed a third-party complaint against Pembrooke, which alleged common-law indemnification, among other causes of action. Pembrooke moved to dismiss, arguing that, in the absence of a vicarious liability allegation against SBP in plaintiff's complaint, SBP could not seek common-law indemnification against Pembrooke. The motion court granted Pembrooke's motion to dismiss SBP's common-law indemnification cause of action. We now affirm.

The court properly dismissed SBP's common-law indemnification cause of action (see Richards Plumbing & Heating Co., Inc. v Washington Group Intl., Inc., 59 AD3d 311, 312 [1st Dept 2009] ). Vicarious liability is the predicate of common-law indemnity, but the complaint here lacks any allegation that SBP was vicariously liable for Pembrooke's conduct (see Trustees of Columbia Univ. v Mitchell/Giurgola Assoc., 109 A.D.2d 449, 453 [1st Dept 1985] ). The complaint alleges that plaintiff's injury was caused by the negligence of “SBP[,] its employees, agents, servants, representatives, contractors and/or subcontractors,” but Pembrooke was not connected to SBP in any of those ways

(see Feliberty v. Damon, 72 N.Y.2d 112, 117–118 [1988] ). SBP has identified no other basis upon which it might be held vicariously liable for Pembrooke's alleged negligence.

We have considered SBP's remaining arguments and find them unavailing.

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