Trans Country Storage, Inc. v. Robert T. Kirkwood, Inc.

267 A.D.2d 376, 700 N.Y.S.2d 736, 1999 N.Y. App. Div. LEXIS 13165

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1999
• Status: Published

Opinion

—In an action to recover damages for negligence and for implied indemnification, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated November 18, 1998, as denied that branch of its motion which was to dismiss the plaintiff’s second cause of action for implied indemnification.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion which was to dismiss the plaintiff’s second cause of action is granted.

The plaintiff’s complaint alleges two causes of action. The first sounds in negligence against the defendant, an insurance broker, for improperly adding the plaintiff to an insurance policy, resulting in a judgment against it for unpaid premiums. The second cause of action seeks implied indemnification from the broker. The order appealed from granted that branch of the defendant’s motion which was to dismiss the first cause of action as time-barred, and the plaintiff did not cross-appeal from that determination.

The plaintiff’s second cause of action does not set forth a cause of action sounding in implied indemnification. The plaintiff cannot escape the effect of the Statute of Limitations by denominating the second cause of action as one for implied indemnification when the gravamen of that cause of action is negligence (see, Frontier Ins. Co. v State of New York, 87 NY2d 864, 868). O’Brien, J. P., Sullivan, Goldstein, Luciano and Feuerstein, JJ., concur.