Cho Chuen Tsoi, plaintiff-respondent, v. Stillwell Plumbing Supplies, Inc., etc., et al., defendants third-party plaintiffs-respondents, et al., defendants;  Auto Group Collision Corp., etc., third-party defendant-appellant, et al., third-party defendants. (2026)

Argued—January 5, 2026

DECISION & ORDER

W/

In an action to recover damages for personal injuries, the third-party defendant Auto Group Collision Corp. appeals from an order of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated September 20, 2024.  The order denied that third-party defendant's motion for summary judgment dismissing the third-party complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the motion of the third-party defendant Auto Group Collision Corp. for summary judgment dismissing the third-party complaint insofar as asserted against it is granted.

In July 2017, the plaintiff was allegedly injured when he rode a bicycle around an improperly parked van and was struck by a dark-colored vehicle that fled the scene of the accident.  The accident occurred in front of the store of the defendant third-party plaintiff Stillwell Plumbing Supplies, Inc., which was owned and operated by the defendant third-party plaintiff Boris I. Simanovsky (hereinafter together the Stillwell defendants).  Subsequently, the plaintiff commenced this action against, among others, the Stillwell defendants and an unknown driver identified as “John Doe.” The Stillwell defendants commenced a third-party action against, among others, the third-party defendant Auto Group Collision Corp. (hereinafter Auto Group) for contribution and common-law indemnification.

Thereafter, Auto Group moved for summary judgment dismissing the third-party complaint insofar as asserted against it.  In an order dated September 20, 2024, the Supreme Court denied Auto Group's motion.  Auto Group appeals.

“A potential indemnitor is entitled to summary judgment dismissing a claim for common-law indemnification where the evidence demonstrates that the underlying injured party's accident was not solely due to its negligent performance or nonperformance of an act solely within its province” (Meadowbrook Pointe Dev. Corp. v F & G Concrete & Brick Indus., Inc., 214 AD3d 965, 969;  see Zhao Ming Lu v Jackson Ht. Roosevelt Dev. II, LLC, 231 AD3d 1198, 1199).  “[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is ‘a separate duty owed the indemnitee by the indemnitor’ ” (Raquet v. Braun, 90 N.Y.2d 177, 183, quoting Mas v. Two Bridges Assoc., 75 N.Y.2d 680, 690).

Pursuant to CPLR 1401, “two or more persons who are subject to liability for damages for the same personal injury ․ may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.”  “The critical requirement for apportionment under ․ CPLR article 14 is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought” (Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 N.Y.2d 599, 603;  see Alpha/Omega Concrete Corp. v Ovation Risk Planners, Inc., 197 AD3d 1274, 1281).  “[A] party moving for summary judgment dismissing a claim for contribution must make a prima facie showing that it did not owe a duty of reasonable care independent of its contractual obligations, or a duty of reasonable care to the plaintiff” (Burgos v. 14 E. 44 St., LLC, 203 AD3d 688, 690) and, if a duty was owed, the absence of any negligence on its part as to the happening of the underlying accident (see Carter v. Nouveau Indus., Inc., 187 AD3d 702).

Here, the evidence submitted in support of Auto Group's motion established, prima facie, that it did not owe a duty of care to the plaintiff or the Stillwell defendants and the accident was not caused by any negligence on its part.  As such, Auto Group established its prima facie entitlement to judgment as a matter of law dismissing the third-party complaint insofar as asserted against it.  In opposition, the plaintiff and the Stillwell defendants failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).

Accordingly, the Supreme Court should have granted Auto Group's motion for summary judgment dismissing the third-party complaint insofar as asserted against it.

The Stillwell defendants' remaining contention is improperly raised for the first time on appeal and, in any event, without merit.  The plaintiff's remaining contention is academic.

CONNOLLY, J.P., FORD, VOUTSINAS and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court