Complaints might be compared to a precision rifled single shot or to a shotgun, in which an ever-widening pattern of scatter shot is fired.  Complaints patterned on either might be successful, but Iwachiw v Bahr  2013 NY Slip Op 30283(U)  January 11, 2013  Supreme Court, New York County
Docket Number: 401546/2011  Judge: Lucy Billings chose the shotgun approach and was wholly unsuccessful.

"The thrust of the complaint’s allegations against Adorno Denker and Scheiner is that they  participated with other defendants in fraudulently or negligently denying plaintiff Workers’  compensation and insurance coverage for property loss. The complaint simply alleges that
Metazur Restaurant was negligent and also claims wrongful death, malpractice, and defamation against all defendants.

The complaint provides no detail as to what actions by any defendants were fraudulent or what insurance claims they fraudulently or negligently canceled, failed to file, or otherwise denied to plaintiff. His unsworn opposition to Scheiner’s motion indicates that defendant Tower Group’s
misdescription of his mother’s house caused the denial of insurance coverage for the house, but he nowhere pleads the source of any duty on defendants’ part to provide insurance coverage to him.

A fraud claim requires plaintiff to allege that defendants misrepresented or omitted a material fact, knowing the misstatement or omission was false, to induce plaintiff to rely on it, and that plaintiff justifiably relied on the misrepresentation or omission and incurred damages from that reliance. Mandarin Tradinq Ltd. v. Wildenstein, 16 N.Y.3d 173, 178 (2011); Gosmile, Inc. v. Levine, 81 A.D.3d 7 7 , 81 (1st Dep’t 2011); Nicosia v. Board of Mqrs. of the Weber House Condominium, 77 A.D.3d 455, 456 (1st Dep’t 2010); Zanett Lombardier, Ltd. v. Maslow, 29 A.D.3d 495, 496 (1st Dep’t 2006). Plaintiff must plead the circumstances of any claimed fraud in detail, such as the contents of any misrepresentation and when and to whom it was stated. C.P.L.R. § 3016(b); Pludeman v. Northern Leasing SysInc., 10 N.Y.3d 486, 492 (2008); El Entertainment U . S . LP v. Real Talk Entertainment, Inc., 85 A.D.3d 561, 562 (1st Dep’t 2011); Waggoner v. Carum, 68 A.D.3d 1, 6 (1st Dep’t 2009); Caldwell v. Gumley-Haft L.L.C., 55 A.D.3d 408 (1st Dep’t 2008). Since plaintiff pleads none of these elements, let alone in detail, the complaint, even when supplemented by his affidavits in opposition to the motions and cross-motion, fails to support a claim of fraud perpetrated by any defendants against him. Therefore the court grants the motions and cross-motion to
dismiss the fraud claim against defendants Adorno Denker, Metazur Restaurant, and Scheiner. C.P.L.R. §§ 3016(b), 3211(a) (7)."

So many of these cases start over a fee.  Here, relatives try to push relatives out of a house (we guess it was bequeathed to both), and clients end up spending about $ 50,000 to avoid being put in the street.  Then, it comes time to pay the attorneys.  This leads to an attorney fee case and a legal malpractice counterclaim.  In the end, clients lose all around.

Davis v Siskopoulos  2013 NY Slip Op 30353(U)  February 11, 2013  Supreme Court, New York County  Docket Number: 111965/04  Judge: Barbara Jaffe.

"In 2000, defendants hired plaintiff law firm to defend them in a partition action commenced by the brother of decedent Angelo Siskopoulos seeking to evict them from their residence. A referee held a hearing and issued a report finding that defendants had not ousted the brother from the residence, and awarded defendants certain damages, including reimbursement of half of the mortgage payments paid by them and for repairs and maintenance of the property. (Affidavit of Bonnie Reid Berkow, Esq., dated Feb. 13,2012 [Berkow Affid.], E)(h. GG). Between August 1,2000 and December 21,2003, plaintiff rendered legal services to them. As of January 31,2004, defendants had paid plaintiff $8,559.68 for its services, leaving a balance of$45,577.92. (Affirmation of Alexandra Siskopoulos, Esq., dated Feb. 12,2012 [Siskopoulos Aff.], Exh. A).
On or about August 16, 2004, plaintiff commenced the instant action against defendants, asserting causes of action for an account stated and quantum meruit.

Defendants’ failure to plead the specific allegations in their affirmative defenses is not fatal here as plaintiff opposes them on the merits and defendants asked questions relating to them in discovery. (See Drago v Spadafora, 94 AD3d 1041 [2d Dept 2012] [no showing made that plaintiffs were taken by surprise or prejudiced by defendant’s use of unpleaded affirmative defense in support of his motion for summary judgment]; Sullivan v Am. Airlines, Inc., 80 AD3d 600 [2d Dept 2011] [unpleaded defense may serve as basis for granting summary judgment in absence of surprise or prejudice to opposing party]; Joan Hansen & Co., Inc. v Everlast World’s Boxing Headquarters Corp., 2 AD3d 266 [1 st Dept 2003], Iv denied 2 NY3d 702 [2004] [summary judgment may be granted on unpleaded defense where opponent of motion has not been surprised and fully opposed motion]).

Here, defendants have failed to establish, prima facie, that plaintiff is not an expert in the real estate field or had no experience dealing with partition actions as plaintiff s discovery response that it could not recall working on partition actions before 2000 does not constitute an admission that it had no experience working on such actions, and they cite nothing in Wagner’s deposition testimony that is relevant to this claim. Thus, to the extent that plaintiff made certain representations to defendants, defendants have not shown that they were false misrepresentations. In any event, as defendants fail to submit an affidavit from someone with personal knowledge of the circumstances underlying their retention of plaintiff, they cannot establish that plaintiff made the representations to them on which they relied, and the printout of plaintiffs website is not probative. (See eg Dombroski v Samaritan Hasp., 47 AD3d 80 [3d Dept 2007] [general accusation of deception not based on personal knowledge insufficient to establish estoppel]; Cohen v Houseconnect Realty Corp., 289 AD2d 277 [2d Dept 2001] [complaint contained no allegations setting forth alleged misrepresentations, and no such allegations were contained in plaintiffs affidavit submitted on motion]; Urquhart v Philbor Motors, Inc., 9 AD3d 458 [2d Dept 2004] [affidavit submitted by defendant insufficient to establish prima facie entitlement to summary judgment as it was not by person with first-hand knowledge of alleged misrepresentations]; see also Nissan Motor Acceptance Corp. v Scialpi, 83 AD3d 1020 [2d Dept 2011] [conclusory and unsubstantiated allegations of fraud and misrepresentation insufficient]; cf Silber v Muschel, 190 AD2d 727 [2d Dept 1993] [defendant submitted fact-specific affidavit evincing first-hand knowledge of  misrepresentations made by plaintiff during parties’ negotiations]; Slavin v Victor, 168 AD2d 399 [1 st Dept 1990] [in alleging fraud, party appropriately offered affidavit of person with first-hand  knowledge as to nature of misrepresentations). For the same reasons, defendants have not established their claim that plaintiff breached ethical rules by holding itself out as an expert in real estate.

Not only did the defendants obtain dismissal, but the non-answering defendant obtained dismissal too.  Unfortunately the 2d Department decision in Siwiec v Rawlins 2013 NY Slip Op 00903 Decided on February 13, 2013  Appellate Division, Second Department did not explain its reasoning. The most that can be gleaned from this slender record is "Here, the complaint fails to allege facts sufficient to establish that the underlying action would have been successful or that the defendants proximately caused the plaintiff to sustain damages (see Hallman v Kantor, 72 AD3d 895, 897; Wald v Berwitz, 62 AD3d at 787; Simmons v Edelstein, 32 AD3d 464, 465-466). Accordingly, the Supreme Court properly granted the motion of the defendants Gary N. Rawlins and The Rawlins Law Firm, PLLC, and the cross motion of the defendant Craig F. Wilson, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

Further, the Supreme Court providently exercised its discretion in denying the plaintiff’s cross motion pursuant to CPLR 3215(a) for leave to enter a default judgment against the defendant Craig F. Wilson (see Feder v Eline Capital Corp., 80 AD3d 554; Giha v Giannos Enters., Inc., 69 AD3d 564, 565). "

Plaintiff loses in Supreme Court, and dismissal is affirmed in the Appellate Division in this legal malpractice case.  Voutsas v Hochberg   2013 NY Slip Op 00803   Decided on February 7, 2013
Appellate Division, First Department  discusses the limits of the fraud discovery rule, as well as continuous representation.
 

"The fraud and breach of contract claims alleging that plaintiff’s former attorneys had misrepresented to the Bankruptcy Court that plaintiff was insolvent accrued no later than the December 26, 2001 entry of the bankruptcy decree. Accrual of the portion of the fraud claim alleging that payment of part of plaintiff’s legal fees by a third party was concealed from him was not deferred by the discovery rule, since the documentary evidence, even without the affidavits submitted, clearly showed that plaintiff had been aware of such payment more than two years before he commenced this action. The continuous representation doctrine did not apply to the malpractice claim, as the legal services relied upon were unrelated to the specific legal matter as to which malpractice was alleged (see Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]), and was not pursuant to a retainer agreement in which the attorney and client anticipated continued representation (id. at 170).

Moreover, the fraud, breach of fiduciary duty and breach of contract causes of action all arose from the same facts as the malpractice claim and alleged similar damages, and were therefore properly dismissed as duplicative of the deficient malpractice claim (see e.g. Sun Graphics Corp. v Levy, Davis & Maher, LLP, 94 AD3d 669 [1st Dept 2012]; Bernard v [*2]Proskauer Rose, LLP, 87 AD3d 412, 416 [1st Dept 2011]). "

Justice Ritholtz of Supreme Court, Queens County lays the issue out in the first sentence of the decision in 150 Centreville, LLC v Lin Assoc. Architects, PC   2013 NY Slip Op 23038 Decided on February 6, 2013  Supreme Court, Queens County Ritholtz, J.    "The questions involved in this action are whether there should be any consequences to plaintiffs who commenced a litigation, waged for several years, but failed to preserve and safeguard the documents necessary to provide responses to defendants during discovery, and what ramifications and/or sanctions should flow from [*2]the failure. This opinion also raises novel issues regarding the issuance of attorney’s fees under Part 130 of the Rules of the Chief Administrator, governing the award of costs and the imposition of financial sanctions for frivolous conduct in civil litigation."
 

"The Appellate Division, Second Department, has repeatedly stated that it will not tolerate a pattern of willful default and neglect in court-ordered discovery obligations. See, Bazoyah v Herschitz, 79 AD3d 1081, 1081-1082; Brownfield v Ferris, 49 AD3d 790, 791; Diamond v Vitucci, 36 AD3d 650; Rodriguez v New York Methodist Hosp., 3 AD3d 526; Clarke v UPS, Inc., 300 AD2d 614, 615; Piacentini v Mineola Union Free School Dist., 267 AD2d 290; Wynne v Wagner, 262 AD2d 556, 556, appeal dismissed, 94 NY2d 796; Williams v New Style Limousine, Inc., 1 Misc 3d 502, 506; Fujah v V-M Auto Refinishing Corp., 192 Misc 2d 170, 175; accord, Williams v Shiva Ambulette Serv., Inc.,AD3d, 2013 WL 322588 .

Five separate orders have been issued concerning plaintiffs’ failure to engage in discovery: the Preliminary Conference Order of April 22, 2009, the Compliance Conference Order of September 8, 2009 that specifically referenced the defendants’ set of [*8]interrogatories and demand for documents dated June 15, 2009, the Short Form Order of Dec. 14, 2009, the Short Form Order of March 18, 2011, and, finally, the So-Ordered Stipulation of Oct. 6, 2011. "

"The order of this Court dated December 14, 2009, dismissing the complaint without opposition, cited the New York Court of Appeals’ decision in Kihl v. Pfeffer, 94 NY2d 118, where the Court unanimously affirmed the trial court’s dismissal of a complaint for a plaintiff’s failure to respond to a set of interrogatories. There, in Kihl, Chief Judge Kaye, writing for the Court, stated:

Regrettably, it is not only the law but also the scenario that is all too familiar [citations omitted]. If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a "court may make such orders . . . as are just," including dismissal of an action (CPLR 3126). Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully.94 NY2d at 122-123.

Despite the admonition of the Court of Appeals in Kihl, in 1999, the Court, even a decade later, was still warning the Bar and litigants with the message that discovery orders needed to be obeyed. Specifically, in Gibbs v St. Barnabas Hospital, 16 NY3d 74, the Court of Appeals asserted that "there is also a compelling need for courts to require compliance with enforcement orders if the authority of the courts is to be respected by the bar, litigants and the public." Gibbs, 16 NY3d at 81. The Court, in language certainly applicable to the facts of the case at bar, maintained: "Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution." Id.

That message still has not penetrated, requiring appellate courts to repeat it. Most recently, Justice Leonard B. Austin, writing for a unanimous panel of the Appellate Division, Second Department, in Arpino v F.J.F. & Sons Elec. Co., Inc.,AD3d, 2012 WL 6028883, 2012 NY Slip Op. 08271, articulated the applicable law:

As the Court of Appeals has noted, the failure of attorneys to comply with court-ordered deadlines has increasingly become a problem in our court system [citations omitted]. Compliance requires not only a timely response, but a good-faith effort to provide a meaningful response [citations omitted]. The failure to comply with deadlines and provide good-faith responses to discovery demands "impairs the efficient functioning of the courts and the adjudication of claims" (see, Gibbs v. St. Barnabas Hosp., 16 NY3d at 81; Kihl v. Pfeffer, 94 NY2d 118, at 123). The Court of Appeals has also pointed out that "[c]hronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules" (Gibbs v. St. Barnabas Hosp., 16 NY3d at 81), and has declared that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl v. Pfeffer, 94 NY2d at 123; see generally, Cadichon v. Facelle, 18 NY3d 230). "

"A party has a duty to preserve, protect, and safeguard evidence when it has notice that the evidence is relevant to litigation or should have known that the evidence might be relevant to future litigation. See, e.g., VOOM HD Holdings LLC v EchoStar Satellite, L.L.C., 93 AD3d 33 [appellate court found that the destruction of emails for a four-month period, when a "litigation hold" should have been placed on electronically stored information, was, at a minimum, "grossly negligent"], aff’g 2010 WL 8400073, 2010 NY Slip Op 33759(U) & 2010 WL 8435623, 2010 NY Slip Op. 33764(U); S.B. v U.B.,Misc 3d, 953 NYS2d 831, 2012 NY Slip Op. 22313 ["(A) party is responsible for preserving evidence when they are on notice that it may be needed for litigation. [citation omitted]. This responsibility to preserve evidence may extend to items that are not in the possession of a party when that party negligently fails to take steps to assure its preservation."].

It’s medical malpractice which is something we don’t usually write about, but Justice Schlesinger’s opinion in this medical malpractice summary judgment opinion is well worth reading.  Balzola v Giese  2013 NY Slip Op 30324(U)  February 5, 2013  Supreme Court, New York County  Docket Number: 114205/2009  Judge: Alice Schlesinger slowly and thoroughly works it way through a medical malpractice – hearsay – summary judgment problem.

"The plaintiff, her widower and Administrator of the estate, is Pablo Balzola. It is his account of Ms. Porras’ last days which forms the critical part of this action, one sounding in wrongful death and medical malpractice, It is also the critical part of the motion now before me by the defendants, a motion to dismiss the action in its entirety. His account is so critical because Mr. Balzola, at his deposition, testified about the symptoms his wife was having as she reported them to him. Those symptoms, which included chest pains and shortness of breath, form a good part of the predicate
for the opinions provided by Dr. Mark Taff, a Pathologist and Chief Medical Examiner of Rockland County and expert for plaintiff on the issue of causation, as well as for the opinions provided by a board certified plastic surgeon and expert for the plaintiff on the issue of departures. The moving defendants are her doctor, Sharon Giese, who performed this elective surgery on June 25, her P.C., and Sarah Lazarus, her Physician’s Assistant. Pursuant to CPLR 53212, they are all moving for summary judgment.

In other words, counsel for defendants argues that, even if there had been malpractice, there is no merit to the plaintiff‘s contention that the embolism which killed Ms. Porras could have been treated, in other words, that there was time to treat it. This is from a pathology perspective. 

After reviewing pathology slides, Dr. Factor states that he is able to ascertain the timing of the decedent’s fatal pulmonary embolism, In his affirmation he opines that “the fatal pulmonary embolism was acute, fresh, and traveled to the decedent’s lung only 20 to 30 seconds prior to the decedent’s acute cardiopulmonary failure.” (79, emphasis in the original). Dr. Factor further opines, also with a reasonable degree of medical certainty, that “after forming, the thrombus broke off from a vein in decedent’s lower extremity and traveled to (her) pulmonary artery only moments before it caused the acute cardiopulmonary failure and her ultimate death.” (71 0, emphasis in the original).
Finally, and this is of great significance, Dr. Factor states that ‘“he decedent would not have experienced any symptoms related to the fatal pulmonary embolism at any time prior to the moments immediately before she lost consciousness in the late evening of Saturday, June1 27, 2009”. (71 1, emphasis in the original). Thus, Dr. Factor concludes that there would have been no time for Ms. Porras to seek medical assistance. In other words, he either challenges the veracity of Mr. Balzola’s testimony regarding the reported symptoms, or he feels the symptoms are not related to the embolism.Plaintiff confronts these opinions and submits two of his own expert affirmations to refute them.

However, as alluded to earlier, what is largely determinative of this motion and action is the issue of causation. For as we all know, the defendant doctor might have been grossly negligent or terribly uncaring or worse, but if such I behavior would not have made any difference in the ultimate outcome, the tragic death of Adriana Porras, then the action must fail. Dr. Taff tells us that in his role as Chief Medical Examiner of Rockland County, he was present at the June 29, 2009 autopsy of the decedent.’ He then states that his opinions rely not only on the medical records, litigation documents and affirmations of the defense experts, but also on his own observations during the autopsy. He then recites the cause of death as was reported in the Autopsy Report. Immediately
thereafter, he gives his opinion “within a reasonable degree of medical certainty that based upon the results of the autopsy, there was sufficient time to intervene to treat her pulmonary emboli and the failure of the defendants … to take any action deprived her of a substantial chance of cure and was the proximate cause of her death.” (Exh A to Opposition, 76).
 

However, Dr. Taff relies on more than “the results of the autopsy” to arrive at this conclusion. Later on in his affirmation, he discusses the testimony of Mr. Balzola as to the complaints made to him by his wife in the post-operative days, Friday and Saturday, June 26 and June 27, 2009. He relates those symptoms to his observations and explains how the latter were responsible for the former.  Specifically in this regard, Dr. Taff states that during the autopsy “we found” that rather than seeing one massive clot to the lung, in fact “both of her lungs contained multiple small clots obstructing both lungs as well as one large clot lodged in the pulmonary artery and branches.” (VI 3). This physician then agrees with the report’s conclusion that it was the larger clot that caused Ms. Porras’ death, as it broke off and traveled to her lung.

However, Dr. Taff then goes on to opine, within a reasonable degree of medical certainty, that these smaller clots or “bits and pieces of the thrombosed right popliteal vein” were the cause of the “shortness of breath and chest pains” which Ms. Porras complained of to her husband on the Friday and Saturday after the surgery.In other words, the smaller clots were not enough to “completely obstruct her lung function” but were enough to diminish that function to the extent of causing her to ‘experience shortness of breath and chest pain. "

We suggest that you read the balance of the opinion, which goes on to discuss hearsay, the present sense exception and summary judgment as well as the balancing of expert opinions and fact observations.

Hsu v Liu & Shields LLP  2013 NY Slip Op 30291(U)  February 7, 2013  Sup Ct, New York County
Docket Number: 400781/12  Judge: Richard F. Braun is the story of how one set of plaintiffs lost this case twice, in fact three times.  Plaintiff is pro-se, and complains that he and other plaintiffs were the defendants in a NASD action. "In 2006 the National Association of Securities Dealers issued a decision against plaintiffs and their brokerage firm.  Plaintiffs’ position is that the NASD made a mistake in charging them with violations.  Plaintiffs appealed the NASD decision with the SEC."  They hired defendants to handle the case.  After that it was all downhill.  Plaintiffs allege that defendants "allegedly represented that they would e-file the appeal with the court. Defendants represented the papers were timely filed. Upon plaintiffs’ request, defendants provided plaintiffs with a copy of the allegedly filed notice of appeal. Plaintiffs continued to make inquiry regarding the progress of the appeal, but eventually defendants refused to respond to plaintiffs’ inquiries. Plaintiffs filed a complaint against defendants with the Grievance Committee. Plaintiffs alleged that in responding to the Grievance Committee defendants falsified a letter that defendants had withdrawn as counsel from plaintiffs’ case. Plaintiffs deny receiving any letter, phone call, or email from defendants after February 14, 2008. Other alleged deceptions by defendants were that the SEC decision had never been served on defendants, that the time to appeal had not yet begun to run, and that plaintiffs could still hire another attorney to do the appeal. The Grievance Committee dismissed the plaintiffs’ complaint against defendants. From 2009 to 2011, plaintiffs attempted to appeal the NASD decision. In 201 1, plaintiffs’ action as to the NASD decision was dismissed by the judge because plaintiffs did not appeal the SEC decision, so the appellate remedy was waived. The New Jersey Bureau of Securities used the NASD decision as evidence to revoke plaintiffs’ registrations and assess monetary penal ties against plaintiffs."

"Plaintiffs argue that the legal malpractice claim occurred within the statute of limitations. However, plaintiffs fail to recognize that a legal malpractice claim accrues “when all the facts necessary to the cause of action have occurred” and the court can grant relief (McCoy v Feinman, 99 NY2d 295, 301 [2002]). Plaintiffs’ claim is based on the allegation that defendants failed to timely file an appeal, among other things. Relying on Glamm v Allen (57 NY2d 87, 95 [1982]), defendants note that a claim for malpractice related to a missed deadline accrues when the deadline is missed. The Court stated: “What is important is when the malpractice was committed, not when the client discovered it,” (id.) Plaintiffs also assert a purported fraud claim, forgery, deception, and a breach of agreement, all stemming from the alleged legal malpractice (cf. Melnitzky v Hollander, 16 AD3d 192 [ 1st Dept 20051 [where the fraud and collusion causes of action were dismissed under CPLR 32 1 1 (a) (71, due to their being grounded in the same allegations as the legal malpractice cause
of action]). CPLR 2 14 (6) provides for a three year statute of limitations for “an action to recover
damages for malpractice …, regardless of whether the underlying theory is based in contract or tort.”  Plaintiffs’ action was not commenced within the three year statute of limitations. The continuous representation doctrine does not apply here. Further, defendants representation was limited to the terms of their agreement with plaintiffs. Therefore, the CPLR 321 1 (a) (5) branch of the motion should be granted."

In Balkheimer v Spanton   2013 NY Slip Op 00715   Decided on February 6, 2013   Appellate Division, Second Department   we see two law firms, and their stellar legal malpractice defense attorneys fighting over who is more responsible to plaintiff.  In a situation such as this, we see the unusual (but not unprecedented) comedy of legal malpractice insurance defense attorneys pointing the finger and claiming legal malpractice was committed.
 

In any event, the lesson to be learned from this case is that after a release there are no more contribution claims, and indemnity claims depend on a separate duty owed by the indemintor to the indemnitee, not based upon duties from the indemnitor to the injured party.

"Pursuant to General Obligations Law § 15-108(b), "[a] release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15-108(a)] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules." Here, the plaintiffs executed a general release in favor of the third-party defendants. There is no indication in the record that the release was not executed in good faith. Therefore, pursuant to General Obligations Law § 15-108(b), the third-party defendants are relieved from liability to the third-party plaintiffs for contribution (see Ziviello v O’Boyle, 90 AD3d 916, 917; Kagan v Jacobs, 260 AD2d 442). Accordingly, the Supreme Court should have granted that branch of the motion of the third-party defendants which was pursuant to CPLR 3211(a)(5) to dismiss the contribution cause of action in the third-party complaint as barred by the release.

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the [pleading] as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88). "[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 [*2]indemnitor’" (Raquet v Braun, 90 NY2d 177, 183, quoting Mas v Two Bridges Assocs., 75 NY2d 680, 690; see Lovino, Inc. v Lavallee Law Offs., 96 AD3d 909, 909-910). "