Langner v. Eschwege

39 A.D.2d 653, 332 N.Y.S.2d 16, 1972 N.Y. App. Div. LEXIS 4651

Opinion

Order, Supreme Court, New York County, entered on June 9, 1971, granting the motion of the third-party defendant-attorney to dismiss the third-party complaint, unanimously reversed, on the law, without costs and without disbursements, and the motion denied. Relevant facts are set forth in this court’s memorandum (39 A D 2d 652) published simultaneously herewith. In the third-party complaint, which seeks indemnity, defendant attorney alleges that if there is liability to plaintiffs, it is due to the primary negligence of the third-party defendant. The third-party defendant’s position, which was adopted by Special Term, that defendant is charged solely with active negligence and hence is precluded from seeking indemnification, no longer constitutes a bar to such relief. The so-called active-passive dichotomy has now become a relic of the past, being replaced by new guidelines based upon shared responsibility in apportioning liability. (Dole v. Dow Chem. Co., 30 N Y 2d 143; Wood v. City of New York, 39 A D 2d 534.) Concur — Kupferman, J. P., ^IcNally, Tilzer and Capozzoli, JJ.