Community Steel Corp. v. Terra Marine Dredging Corp.

176 A.D.2d 1196

Opinion

— Order unanimously affirmed with costs. Memorandum: Community Steel Corporation (Community) purchased 1,200 feet of sponge joint material from Prince Rubber & Plastics, Inc. (Prince) and, in turn, sold the joint material to Terra Marine Dredging Corporation (Terra) for Terra’s use in a public improvement project in the Town of Amherst. In the main action, Terra asserted a counterclaim against Community for Community’s failure, inter alia, "to supply the proper joint material”. Community then instituted the third-party action for indemnification against Prince. Supreme Court properly denied Prince’s motion to dismiss the third-party complaint.

Community has pleaded a valid claim for implied indemnification. It seeks full reimbursement for Prince’s breach of an implied warranty of fitness for a particular purpose (see, Uniform Commercial Code § 2-315; McDermott v City of New York, 50 NY2d 211, 218-219). With respect to that breach, Community is free from affirmative fault and seeks to shift the obligation where in equity it belongs (see, Garrett v Holiday Inns, 86 AD2d 469, 470, mod on other grounds 58 NY2d 253). Since it is well settled that "[indemnification claims generally do not accrue for the purpose of the Statute of Limitations until the party seeking indemnification has made payment to the injured person” (McDermott v City of New York, supra, at 216), the third-party action is timely. (Appeal from Order of Supreme Court, Erie County, Francis, J. — Dismiss Complaint.) Present — Callahan, A. P. J., Doerr, Boomer, Green and Davis, JJ.