CONSOLIDATED RAIL CORPORATION v. HUNTS POINT TERMINAL PRODUCE COOPERATIVE ASSOCIATION INC

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

CONSOLIDATED RAIL CORPORATION, Plaintiff-Appellant, v. HUNTS POINT TERMINAL PRODUCE COOPERATIVE ASSOCIATION, INC., Defendant-Respondent.

Decided: October 19, 2004

NARDELLI, J.P., SAXE, SULLIVAN, ELLERIN, SWEENY, JJ. Hodgson Russ LLP, New York (Alan Muraidekh of counsel), for appellant. Litchfield Cavo, New York (Daniel T. Hughes of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Barbara R. Kapnick, J.), entered July 29, 2003, which, to the extent appealed from as limited by the brief, granted defendant's motion for summary judgment dismissing plaintiff's claim for common-law indemnification, unanimously affirmed, with costs.

Plaintiff has no claim for common-law indemnification because its liability in the underlying settled personal injury action, if any, would not have been vicarious but would have been premised upon its own acts or omissions (see Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 569, 516 N.Y.S.2d 451, 509 N.E.2d 51 [1987];  Williams v. New York City Tr. Auth., 9 A.D.3d 308, 780 N.Y.S.2d 580 [2004] ).   The evidence establishes that plaintiff inspected the area where the subject accident occurred, and had the right to enter upon defendant's property at any time for the purpose of inspecting, repairing or operating over the sidetrack.   This being the case, plaintiff's recourse, if any, against defendant, its codefendant in the underlying action, would not have been for common-law indemnification, but rather for contribution.   The settlements obtained by the parties in the underlying action, however, preclude plaintiff's assertion of such a claim against defendant (see General Obligations Law § 15-108).