Raquet v. Zane

269 A.D.2d 876, 703 N.Y.S.2d 805, 2000 N.Y. App. Div. LEXIS 1855

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2000
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the cross motions of third-party defendants for dismissal of the third-party action. Pamela N. Koss, as administratrix of the Estate of Leonard J. Zane (Estate), may properly maintain the third-party action seeking contribution although the main action has been tried and the Estate has not yet paid more than the proportionate share of the damages for which it was found liable to plaintiffs. The cases relied upon by third-party defendants are inapposite (see, Klinger v Dudley, 41 NY2d 362; Baca v HRH Constr. Corp., 200 AD2d 538, lv denied 84 NY2d 807). Here, the Estate was prohibited by an adverse ruling of this Court from seeking contribution from third-party defendants (Raquet v Braun, 229 AD2d 1040), and the liability of third-party defendants was not an issue at the trial of the main action. After that trial was concluded, the Court of Appeals reversed and the third-party action was reinstated (Raquet v Braun, 90 NY2d 177). Under those circumstances, the Estate has the right to have the liability of third-party defendants determined before paying its proportionate share of the judgment.

There is no impediment to the Estate’s assigning to plaintiffs the right to seek contribution from third-party defendants (cf., Klinger v Dudley, supra) or to the representation of the Estate by the same attorney who represents plaintiffs. The Estate and plaintiffs submitted affidavits establishing that they have waived any potential conflict of interest. We have examined the remaining arguments raised by third-party defendants and conclude that they are without merit. (Appeals from Order of Supreme Court, Erie County, Glownia, J. — Dismiss Pleading.) Present — Hayes, J. P., Wisner, Pigott, Jr., Scudder and Law-ton, JJ.