City of Rochester v. MacKnight

75 A.D.2d 990

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 1980
• Status: Published

Opinion

unanimously affirmed, with costs. Memorandum: Defendant York Division of Borg-Warner Corp., subcontractor for the construction of the ice rink at the Monroe County War Memorial, appeals from an order denying its motion to dismiss the cross claims against it alleged by the architects, defendants MacKnight, Kirmmse and French, and the engineers, defendants Smith and Smith Associates. Plaintiffs complaint asserted causes of action in negligence, breach of contract and breach of warranty against the architects and engineers and similar causes of action against the remaining defendants, including York. In essence, plaintiff alleges that the architects and engineers caused damage to its property by failing properly to design and supervise the construction of an ice rink and its cooling system, and that the contractor and its subcontractors, including York, caused the same damage to its property by failing to comply with specifications, failing to perform in a workmanlike manner and failing to provide equipment and materials of merchantable quality and fit for the purpose for which they were intended. Manifestly, under these pleadings it is possible that the proof may establish that both the cross-claiming defendants and the appellant York contributed to causing the property damage. Accordingly, and regardless of whether the recovery be upon similar or different theories, the architects and the engineers may be entitled to indemnity or apportionment from appellant and the motion was properly denied (CPLR 1401, 1403; Taft v Shaffer Trucking; 52 AD2d 255; and cf. Carrols Equities Corp. v Villnave, 76 Misc 2d 205, affd 49 AD2d 672). (Appeal from order of Monroe Supreme Court—dismiss cross claims.) Present—Simons, J. P., Hancock, Jr., Schnepp, Doerr and Moule, JJ.