Faussete v. Starr

245 A.D.2d 108, 664 N.Y.S.2d 805, 1997 N.Y. App. Div. LEXIS 12924

Opinion

—Order, Supreme Court, New York County (Norman Ryp, J.), entered on or about June 24, 1996, which, insofar as appealed from, granted defendants-respondents’ motion for summary judgment dismissing defendants-appellants’ cross claim for indemnification or contribution, unanimously affirmed, with costs.

Appellants’ cross claim against respondents was properly dismissed upon plaintiffs sworn statement that he was injured on appellants’ property, not, as he originally alleged, on respondents’ property; appellants’ failure to come forward with evidence to the contrary; and plaintiffs discontinuance with prejudice as against respondents. Since the accident could not have occurred at both locations, there is no possibility that both appellants and respondents contributed to plaintiffs injuries, and therefore no possible right to contribution (see, Stone v Williams, 64 NY2d 639, 642; Smith v Sapienza, 52 NY2d 82, 87). Appellants will have ample opportunity to prove that the accident did not occur on their property, in which event they will not be held liable, and there will be no need for contribution from respondents or anyone else. Concur—Ellerin, J. P., Wallach, Williams, Andrias and Colabella, JJ.