Yesterday we discussed the legal malpractice aspect of Billiard Balls Mgt. LLC v Mintzer Sarowitz Zeris Ledva & Meyers, LLP 2018 NY Slip Op 32019(U) August 17, 2018
Supreme Court, New York County Docket Number: 153477/2016 Judge: Carol R. Edmead. It was dismissed, mostly on the basis of lack of privity, backed up by lack of evidence of departure.
Here is the decision on contribution and indemnity:
“Pillinger argues that the common-law indemnification claim must be dismissed as Mintzer cannot be indemnified for its own negligence. In opposition, Mintzer argues broadly that it has stated a valid claim for common-law indemnification. It does not, however, make any specific response to Pillinger’s argument or defend its common-law indemnification claim with any detail.
Generally, common-law indemnification requires one party that is “actively at fault in bringing about the injury” to indemnify another party that “is held responsible solely by operation of law because of [its] relation to the actual wrongdoer” (McCarthy v Turner Constr., ‘”‘ Inc., 17 NY3d 369, 374, 375  [internal quotation marks and citation omitted]). Here, if Mintzer is found liable to Billiard Balls, it will necessarily be because it has been found liable for its own negligence, not because it was found liable solely by operation of law. Thus, as Mintzer does not state or have a cause of action against Pillinger for common-law indemnification, the branch of the motion that seeks dismissal of that claim must be granted.
The Third-party Complaint alleges that “if the Plaintiff sustained damages … and recovers judgment against Mintzer, such damages will have been brought about in whole or in part as a result of the actions and conduct of Pillinger” (Third-party Complaint, No. 45). Accordingly, Mintzer alleges that, in the event of a verdict in Billiard Balls’ favor, it “shall be entitled to contribution from Pillinger, for an equitable share of any such judgment on the basis of the comparative degree of culpability of [Pillinger]” (id.).
Pillinger contends that the claim for contribution must be dismissed, as it did not cause, contribute to, or share in Mintzer’s alleged malpractice. Mintzer mounts a more detailed opposition to this branch of the motion seeking dismissal of the contribution claim than it does for the other causes of action in the Third-party complaint.
Mintzer argues that Pillinger contributed to Billiard Balls’ alleged damages. Specifically, Mintzer contends that Pillinger failed to make a showing of a meritorious defense, in their opposition to Gershman’s motion for a default judgment, and that failure contributed to Billiard Balls’ damages. Mintzer also claims that Pillinger contributed to the delay to answer because the Second Department noted:
“While [Billiard Balls’ general manager] averred that Billiard did not attempt to
avoid interposing an Answer, he acknowledged that he did nothing with regard to
interposing an answer until after the motion for leave to enter judgment had been
served by the plaintiff, at which time there was still an approximately 30-day
delay between the service of the motion and the date of the verified answer. Thus,
the delay was not attributable to insurance carrier delay, but rather, resulted from
Billiard’s attempts and negotiations to alter the outcome of its insurance carrier’s
disclaimer. Under these circumstances, we find the excuse for Billiard’s default