101 Misc. 2d 465 | N.Y. Sup. Ct. | 1979
OPINION OF THE COURT
This is a motion by defendants Deluxe Van Lines, Inc., and Cosmopolitan Warehouse Corp. to dismiss the cross claim of the defendant Leopold Porrino, Inc.
In or about August of 1976, the plaintiffs stored certain household effects with the movants Deluxe Van Lines, Inc.,
The plaintiffs’ complaint against the defendants Deluxe and Cosmopolitan is grounded in negligence. The claim against the defendant Leopold Porrino, Inc., is based upon an alleged failure of this defendant, an insurance broker, to provide insurance sufficient to cover plaintiffs for a loss which would possibly occur if plaintiffs’ goods were stored in a public warehouse.
The cross claim of the defendant Leopold Porrino, Inc., seeks both contribution and indemnity from the movants. Based upon the payment of $10,000 by the movants and the execution of a general release by the plaintiffs, the complaint in this action was dismissed as against movants. (See short form order of Mr. Justice Burke, Nov. 30, 1978.)
It is clear that the provisions of section 15-108 of the General Obligations Law preclude a cross claim by defendant Leopold Porrino, Inc., for contribution from the movants and that the defendant Leopold Porrino, Inc., does not seriously argue to the contrary. Rather, it is said defendant’s claim that the cross claim also asserts an action over predicated upon common-law indemnification.
In other words, Leopold Porrino, Inc., claims that it has a right to interpose a claim for indemnity against the movants because of the property damage claimed by the plaintiff. It appears that under the appropriate circumstances such a claim would not be barred by the provisions of section 15-108 of the General Obligations Law (see Riviello v Waldron, 47 NY2d 297) and that the cross claim would have continued efficacy. However, such is not the case at bar.
The defendant, Leopold Porrino, Inc., asserts that there is "a complete distinction between contribution and indemnifica
Accordingly, the cross claim must be dismissed.