Perkins Eastman Architects, P.C. v. Thor Engineers, P.A.
769 F. Supp. 2d 322
S.D.N.Y.2011Background
- Atlantic Realty retained Perkins Eastman to provide architectural services for the Englewood Project around November 2004.
- Perkins Eastman then retained Thor to provide structural design services for foundations, footings, and slabs.
- In September 2008, Atlantic Realty hired Weathertite to address cracking and water infiltration at the Project and demanded indemnification from Perkins Eastman.
- Perkins Eastman filed a First-Party Complaint against Thor in September 2009 seeking indemnification and alleging breach of contract and professional malpractice.
- Thor filed a Third-Party Complaint against Atlantic Realty in January 2010 seeking contribution and common-law indemnification; Atlantic Realty moved to dismiss the third-party claims in August–September 2010.
- The court granted Atlantic Realty’s Rule 12(b)(6) motion, dismissing Thor’s Third-Party Complaint for failure to plead the required breach of duty under New York law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NY CPLR 1401 applies to this case | Thor argues contribution is available under CPLR 1401 against Atlantic Realty. | Atlantic Realty contends no predicate tort breach exists to support contribution and indemnification. | No actionable predicate tort breach pleaded; contribution not merited. |
| Whether a breach of duty is required for a New York contribution claim | Thor claims breach of duty is not a necessary element. | Atlantic Realty argues breach of duty is required to support contribution. | Breach of duty is a necessary element; Thor failed to plead it. |
| Whether Atlantic Realty owed a duty of care to Thor | Atlantic Realty owed Thor a duty as developer to implement Thor’s designs. | No special contractual or relational duty from Atlantic Realty to Thor exists absent privity or its functional equivalent. | Thor failed to allege a duty owed by Atlantic Realty to Thor; no duty found. |
| Whether Thor can pursue common-law indemnification against Atlantic Realty | Indemnification should be available if a duty breach occurred and indemnity relation exists. | Indemnification requires a breach of duty; none alleged. | Indemnification claim fails for lack of pleaded breach of duty between Atlantic Realty and Thor. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must show plausible claim, not mere speculation)
- Sargent, Webster, Crenshaw & Folley v. Bd. of Educ. of Hudson City Sch. Dist., 71 N.Y.2d 21 (N.Y. 1987) (predicate tort liability required for contribution)
- Nassau Roofing & Sheet Metal Co. v. Facilities Development Corp., 71 N.Y.2d 599 (N.Y. 1988) (essential elements for contribution and breach of duty)
- Comi v. Breslin & Breslin, 257 A.D.2d 754 (N.Y. App. Div. 1999) (breach of duty required for apportionment under CPLR article 14)
- In re Sept. 11 Prop. Damage & Bus. Loss Litig., 468 F. Supp. 2d 508 (S.D.N.Y. 2006) (duty owed must be specific and related to the claimant)
- Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382 (N.Y. 1987) (breach of duty governs liability in tort and related claims)
- Melnick v. Parlato, 296 A.D.2d 443 (N.Y. App. Div. 2002) (recognizes duty concepts in third-party relationships)