Davis v. Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, P. C.

Appellate Division of the Supreme Court of New York

Davis v. Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, P. C.

283 A.D.2d 349, 725 N.Y.S.2d 542, 2001 N.Y. App. Div. LEXIS 6277

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 29, 2001

StatusPublished

This text of 283 A.D.2d 349 (Davis v. Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, P. C.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Davis v. Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, P. C., 283 A.D.2d 349, 725 N.Y.S.2d 542, 2001 N.Y. App. Div. LEXIS 6277 (N.Y. Ct. App. 2001).

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Opinion

—Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered on or about March 21, 2000, which, inter alia, denied defendants-appellants’ motion for summary judgment dismissing the cross claims asserted against them by defendants Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, P. C., the firm of Fogelgaren & Bergman, Eric Fogelgaren and Robert Bergman, Esq. (collectively Isaac-son), unanimously reversed, on the law, without costs, and the [350]*350motion granted. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the cross claims as against them.

The IAS court erred in its failure to dismiss Isaacson’s indemnity/contribution cross claim against defendants-appellants. Both defendants-appellants and Isaacson owed plaintiff independent, non-delegable duties of care. “When two tort-feasors neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive” (Suria v Shiffman, 67 NY2d 87, 98). The party from whom contribution is sought must have had a role in causing or augmenting the injury for which contribution is sought (see, Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603). Here, this standard is not met. Isaacson had an independent duty to represent plaintiff’s interests and to advise him of all available causes of action based on the facts he conveyed to them (see, Darby & Darby v VSI Intl., 268 AD2d 270, affd 95 NY2d 308). Further, since Isaacson owed plaintiff an independent nondelegable duty of care, a cross claim for indemnification will not stand where Isaacson has not demonstrated that it was unfairly required to discharge the duty that should have been discharged by another (Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21). Concur — Williams, J. P., Wallach, Lerner, Rubin and Friedman, JJ.

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—Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered on or about March 21, 2000, which, inter alia, denied defendants-appellants’ motion for summary judgment dismissing the cross claims asserted against them by defendants Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, P. C., the firm of Fogelgaren & Bergman, Eric Fogelgaren and Robert Bergman, Esq. (collectively Isaac-son), unanimously reversed, on the law, without costs, and the [350]*350motion granted. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the cross claims as against them.

The IAS court erred in its failure to dismiss Isaacson’s indemnity/contribution cross claim against defendants-appellants. Both defendants-appellants and Isaacson owed plaintiff independent, non-delegable duties of care. “When two tort-feasors neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive” (Suria v Shiffman, 67 NY2d 87, 98). The party from whom contribution is sought must have had a role in causing or augmenting the injury for which contribution is sought (see, Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603). Here, this standard is not met. Isaacson had an independent duty to represent plaintiff’s interests and to advise him of all available causes of action based on the facts he conveyed to them (see, Darby & Darby v VSI Intl., 268 AD2d 270, affd 95 NY2d 308). Further, since Isaacson owed plaintiff an independent nondelegable duty of care, a cross claim for indemnification will not stand where Isaacson has not demonstrated that it was unfairly required to discharge the duty that should have been discharged by another (Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21). Concur — Williams, J. P., Wallach, Lerner, Rubin and Friedman, JJ.

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283 A.D.2d 349, 725 N.Y.S.2d 542, 2001 N.Y. App. Div. LEXIS 6277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-isaacson-robustelli-fox-fine-greco-fogelgaren-p-c-nyappdiv-2001.

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