TEDESCO v. GREEN INDUSTRIES INC

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

Lena C. TEDESCO, Executrix of the Estate of Frank J. Tedesco, Deceased, and Individually as the Surviving Spouse of Frank J. Tedesco, Plaintiff-Respondent, v. A.P. GREEN INDUSTRIES, INC., et al., Defendants,

Insulation Distributors, Inc., Defendant-Appellant. Insulation Distributors, Inc., Third-Party Plaintiff-Appellant, v. E.I. du Pont de Nemours and Company, Third-Party Defendant-Respondent.

Decided: September 30, 2005

PRESENT:  GREEN, J.P., HURLBUTT, SCUDDER, GORSKI, AND LAWTON, JJ. Damon & Morey LLP, Buffalo (Amy Archer Flaherty of Counsel), for Defendant-Appellant and Third-Party Plaintiff-Appellant. Lipsitz & Ponterio, LLC, Buffalo (John Ned Lipsitz of Counsel), for Plaintiff-Respondent. Phillips Lytle LLP, Buffalo (Paul F. Jones of Counsel), for Third-Party Defendant-Respondent.

Plaintiff commenced an action (hereafter, underlying action) alleging that products supplied to E.I. du Pont de Nemours and Company (DuPont), her husband's former employer, by defendant Insulation Distributors, Inc. (IDI), among others, exposed her husband to asbestos and caused his death.   IDI thereafter commenced a third-party action against DuPont seeking indemnification from DuPont.   It is undisputed that IDI was dissolved pursuant to Tax Law § 203-a on December 29, 1999, before plaintiff's husband was diagnosed with asbestos-related illnesses and thus before plaintiff commenced the underlying action.

 We conclude that Supreme Court erred in granting DuPont's cross motion seeking dismissal of the third-party complaint, and we therefore modify the order accordingly.   In support of its cross motion, DuPont contended, inter alia, that IDI lacks the capacity to sue DuPont pursuant to Business Corporation Law § 1006(b), inasmuch as the claim of IDI for indemnification did not arise prior to the dissolution of IDI. Although DuPont is correct that a claim for indemnification does not accrue until a judgment for damages has been entered (see Bay Ridge Air Rights v. State of New York, 44 N.Y.2d 49, 56, 404 N.Y.S.2d 73, 375 N.E.2d 29), here IDI's claim for indemnification is based upon the underlying claim of plaintiff for damages based upon her husband's exposure to asbestos, which occurred prior to the dissolution of IDI (see generally Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449, 451-452, 634 N.Y.S.2d 18, 657 N.E.2d 1301, cert. granted and judgment vacated on other grounds, 518 U.S. 1031, 116 S.Ct. 2576, 135 L.Ed.2d 1091).   We therefore conclude that IDI, as a defendant, may commence a third-party action against DuPont, which “may be liable to [IDI] for all or part of the plaintiff's claim against [it]” (CPLR 1007;  cf. Lorisa Capital Corp. v. Gallo, 119 A.D.2d 99, 109-111, 506 N.Y.S.2d 62).   Finally, we note that the alternative ground for DuPont's cross motion also lacks merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion with respect to the third-party complaint and reinstating the third-party complaint and as modified the order is affirmed without costs.

MEMORANDUM: