LIVINGSTON v. KLEIN

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

Lorraine H. LIVINGSTON, Appellant-Respondent, v. Robert KLEIN, et al., Defendants,

Claire Sandrock, Appellant. Claire Sandrock, Third-Party Plaintiff-Respondent, v. Renaldo, Myers & Palumbo, P.C., Anthony J. Renaldo and James Ian Miller, Third-Party Defendants-Appellants.

Decided: December 31, 1998

PRESENT:  GREEN, J.P., PINE, WISNER, BALIO and BOEHM, JJ. Connors & Corcoran, LLP by Gregory Phillips, Rochester, for Third-Party Defendants-Appellants. Renaldo, Myers & Palumbo, P.C. by James Myers, Williamsville, for Plaintiff-Appellant-Respondent. Johnson, Mullen & Brundage, P.C. by Samuel Brundage, Rochester, for Third-Party Plaintiff-Respondent.

 Supreme Court properly denied defendant Claire Sandrock's motion for summary judgment dismissing the complaint.   Questions of fact regarding what Sandrock knew or should have known about the well water potability and flow tests render summary judgment inappropriate (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

 However, the court should have granted the motion of third-party defendants to dismiss the third-party complaint seeking contribution.   CPLR 1401 enables a litigant to seek contribution only where the underlying action sounds in tort.   Contribution may not be sought where the underlying action is for breach of contract or where the damages sought are purely for economic loss (see, Board of Educ. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 523 N.Y.S.2d 475, 517 N.E.2d 1360;  Genesee Val. Club v. Kidde & Co., 177 A.D.2d 1051, 578 N.Y.S.2d 295, lv. dismissed 79 N.Y.2d 915, 581 N.Y.S.2d 667, 590 N.E.2d 252).   Here, the underlying action is based on breach of contract.   However, even if it was a tort action, contribution would not be available because the damages sought are limited to economic loss (see, Genesee Val. Club v. Kidde & Co., supra).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: