cross claim in New York

2016With respect to the cross claim alleging breach of contract to procure insurance, in opposition to Dunkin Donuts’ demonstration of its prima facie entitlement to judgment as a matter of law, Aldrich Management failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

2016Accordingly, Dunkin Donuts established its prima facie entitlement to judgment as a matter of law dismissing the cross claim for contractual indemnification, and Aldrich Management failed to raise a triable issue of fact in opposition (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

2012Inasmuch as the Chameli defendants failed to raise a triable issue of fact as to any common-law or statutory authority pursuant to which Wal-Mart had a duty to plaintiff that would render it liable for contribution to the Chameli defendants (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), the court was required to grant the motion in its entirety and dismiss the cross claim of the Chameli defendants.

2012The defendant landlord established its prima facie entitlement to judgment as a matter of law on this cross claim by demonstrating that it was entitled to contractual indemnification pursuant to section 64 of the lease between it and the defendant tenant and, in opposition, the defendant tenant failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d at 562 ).

2017Here, Sosa did not seek leave to interpose a cross claim, and thus, the cross claim was not *821 properly before the court (see CPLR 402; Matter of Aguirre v Hernandez, 131 AD3d 716, 716-717 [2015]; Matter of White v Bilal, 21 AD3d 573, 574 [2005]; Matter of Koplen v Austin, 5 AD3d 515, 516 [2004]).

2015As Hernandez did not seek leave to interpose a cross claim, it was not properly before the court (see CPLR 402; Matter of White v Bilal, 21 AD3d 573, 574 [2005]; Matter of Koplen v Austin, 5 AD3d 515, 516 [2004]; Matter of Zenosky v Graziani, 288 AD2d 843, 843 [2001]; Matter of O’Connor v D’Apice, 156 AD2d 610 , 612 [1989]).

2007Since the cross claim which is the subject of this appeal seeks a declaratory judgment, the cross claim must be severed from the main action, and we remit the matter to the Supreme Court, Nassau County, for that purpose, and for the entry of a judgment declaring that the defendant American Home Assurance Company, a company of American International Group, Inc., is not obligated to defend or indemnify the defendant County Oil Company, Inc., in the main action (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).

2002We note that since the cross claim of the Lodge and the Elks sought a declaratory judgment, the Supreme Court should have directed the entry of a declaration in favor of the Lodge and the Elks (see Lanza v Wagner, 11 NY2d 317, 334 , appeal dismissed 371 US 74 , cert denied 371 US 901 ).

2013Accordingly, PGA also established its prima facie entitlement to judgment as a matter of law dismissing the JMOA defendants’ cross claim against it for common-law indemnification (see Mas v Two Bridges Assoc., 75 NY2d 680, 687 [1990]; Bryde v CVS Pharmacy, 61 AD3d 907 [2009]; Coque v Wildflower Estates Devs., Inc., 31 AD3d 484, 489 [2006]; 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80-81 [1999]; Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 146 AD2d at 199-200 ).

2013Accordingly, PGA also established its prima facie entitlement to judgment as a matter of law dismissing the JMOA defendants’ cross claim against it for common-law indemnification (see Mas v Two Bridges Assoc., 75 NY2d 680, 687 [1990]; Bryde v CVS Pharmacy, 61 AD3d 907 [2009]; Coque v Wildflower Estates Devs., Inc., 31 AD3d 484, 489 [2006]; 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80-81 [1999]; Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 146 AD2d at 199-200 ).

2016The appeal from so much of the order as granted that branch of the motion of the defendant Stephanie A. Ryan which was for summary judgment dismissing the cross claim asserted against her must be dismissed, because the right of direct appeal therefrom terminated with the entry of judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]).

1993Ordered that the appeals from the orders are dismissed; and it is further, Ordered that the judgment entered August 13, 1991, is reversed, on the law and the facts, and the cross claim is dismissed; and it is further, Ordered that Abcon Associates, Inc., is awarded one bill of costs, payable by Long Island Concrete Construction Corp. The appeal from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248 ).

2008With respect to respondent’s cross claim concerning three invalidated affidavit ballots, we note that “a cross claim is not permitted in a special proceeding without court order” (Matter of Williams v Rensselaer County Bd. of Elections, 98 AD2d 938, 939 [1983], appeal dismissed 61 NY2d 737 [1984], lv denied 61 NY2d 606 [1984]), and no such order was issued herein.

2004The appellants did not seek leave to serve a cross claim, and thus the cross claim was not properly before the Supreme Court (see Matter of Zenosky v Graziani, 288 AD2d 843 [2001]; Matter of O’Connor v D’ Apice, supra; Matter of Williams v Rensselaer County Bd. of Elections, supra).

2022In view of the foregoing, the motion court correctly declined to dismiss the cross claim for common-law indemnification and contribution brought against Jacobi by defendants Normandie Condominium, Board of Managers of the Normandie Condominium and Metro Management and Development, Inc. ( see McCarthy v Turner Constr., Inc., 17 NY3d 369, 374-375 [2011]; see also Schauer v Joyce , 54 NY2d 1, 5 [1981]).

2021J & S established its prima facie entitlement to judgment as a matter of law dismissing the Chetrits' cross claim for common-law indemnification by demonstrating that it did not actually direct or supervise the plaintiff's work ( see id. at 375 ; Marquez v L & M Dev.

2017Co. of Pa., 57 AD3d 1512, 1512-1513 [2008]).

2017Co. of Pa., 57 AD3d 1512, 1512-1513 [2008]).

2008Kings Park failed to establish its entitlement to judgment as a matter of law dismissing this cross claim. “[S]ince there are questions of fact as to whether the accident resulted from [Kings Park’s] alleged failure to fulfill its obligations pursuant to the terms of the snow removal contract” (Richter v Hunter’s Run Homeowners Assn., Inc., 14 AD3d 601, 602 [2005]; see Mitchell v Fiorini Landscape, 284 AD2d 313, 314 [2001]), the cross claim for common-law indemnification cannot be resolved as a matter of law (see Vilorio v Suffolk Y Jewish Community Ctr., Inc., 33 AD3d 696, 697 [2006]; Baratta

2006Corp., 15 AD3d 545 [2005]; Reznicki v Strathallan Hotel, Inc., 12 AD3d 156 [2004]; Karalic v City of New York, 307 AD2d 254 [2003]). “[S]ince there are questions of fact as to whether the accident resulted from [Eastern’s] alleged failure to fulfill its obligations pursuant to the terms of the snow removal contract” (Richter v Hunter’s Run Homeowners Assn., Inc., 14 AD3d 601, 602 [2005]; see Mitchell v Fiorini Landscape, 284 AD2d 313, 314 [2001]), the cross claim for common-law indemnification cannot be resolved as a matter of law [see e.g.

2021The Structure Tone defendants failed to establish that the subcontract between their subcontractor, Four Daughters, and Humboldt, plaintiff's employer, was intended for their benefit and that therefore they are entitled to indemnification from Humboldt ( see Mendel v Henry Phipps Plaza W., Inc ., 6 NY3d 783, 786 [2006]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

2021The Structure Tone defendants failed to establish that the subcontract between their subcontractor, Four Daughters, and Humboldt, plaintiff's employer, was intended for their benefit and that therefore they are entitled to indemnification from Humboldt ( see Mendel v Henry Phipps Plaza W., Inc ., 6 NY3d 783, 786 [2006]).

2021Here, the Trust's cross claim clearly states that it is seeking contractual indemnification from each of its codefendants ( see Biance v Columbia Washington Ventures, LLC , 12 AD3d 926, 928 [3d Dept 2004]).

2014Upon review of the condominium defendants’ answer, a cross claim for contractual indemnification may be “implied from its statements by fair and reasonable intendment” (Korenman v Zaydelman, 237 AD2d 711, 713 [1997] [internal quotation marks omitted]; see Biance v Columbia Washington Ventures, LLC, 12 AD3d 926, 928 [2004]; Vitale v Fowler Oil Co., 238 AD2d 794, 795 [1997]), and, contrary to Tomchinsky’s contentions, the cross claim is not solely for contribution or limited by a contingency as to the condominium defendants’ liability.

1995The cross claim was not barred by the Statute of Limitations as that claim was viable at the time the underlying action was commenced (see, Imperial Outfitters to Large Men v Genesco, Inc., 95 AD2d 755, 756 ; Colichio v Bailey, 77 AD2d 694 ; Seligson v Chase Manhattan Bank, 50 AD2d 206, 209-210 ; CPLR 213 [2]).

1986(Cf. 1911 Opns Atty Gen 550, 552.) Accordingly, the judgment, insofar as it dismissed plaintiff’s claim against defendants Kremblas and the Bank of New York for misconduct as a notary pursuant to Executive Law § 135, must be reversed and a new trial ordered. m Turning to the cross appeal of defendants Kremblas and the Bank of New York against defendant James Aquino, Kremblas and the Bank of New York contend that the court below erred in holding that the cross claim "alleging negligence is not barred by the Statute of Limitations as it was in the main lawsuit (28 NY Jur, Indemnity, § 33, pp 80-

2021"A motion to dismiss under CPLR 3211 (a) (7) should not be granted unless, within the four corners of the pleading, liberally construed, the pleader has failed to state a cause of action, or unless documents and other submissions establish conclusively that plaintiff has no cause of action" ( Grossman v Pharmhouse Corp. , 234 AD2d 918, 919 [4th Dept 1996]; see Matter of Schwaner v Collins , 17 AD3d 1068, 1069 [4th Dept 2005]). " '[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one' " ( Leon v Martinez , 84 NY2d 83, 88 [1994]).

2012While such motions are usually addressed to the sufficiency of a complaint, a third-party complaint, a cross claim, or a counterclaim, as set forth within the four corners of such a pleading, and the allegations of such a pleading, which must be afforded a liberal construction, are accepted as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Trotta v Ollivier, 91 AD3d 8 [2011]; Winkler v Battery Trading, Inc., 89 AD3d 1016 [2011]; Gioeli v Vlachos, 89 AD3d 984 [2011]), Ford did not specifically argue in its cross motion that the Hendricksons’ complaint or any cross claim was deficient per

2017We note that Gates has standing to raise this issue because it asserted a cross claim against Nolan for contribution and common-law indemnification based upon Nolan’s alleged culpable conduct (see Scoville v Town of Amherst, 277 AD2d 1038, 1039 [2000]).

2017We note that Gates has standing to raise this issue because it asserted a cross claim against Nolan for contribution and common-law indemnification based upon Nolan’s alleged culpable conduct (see Scoville v Town of Amherst, 277 AD2d 1038, 1039 [2000]).

2013Accordingly, PGA also established its prima facie entitlement to judgment as a matter of law dismissing the JMOA defendants’ cross claim against it for common-law indemnification (see Mas v Two Bridges Assoc., 75 NY2d 680, 687 [1990]; Bryde v CVS Pharmacy, 61 AD3d 907 [2009]; Coque v Wildflower Estates Devs., Inc., 31 AD3d 484, 489 [2006]; 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80-81 [1999]; Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 146 AD2d at 199-200 ).

2013Accordingly, PGA also established its prima facie entitlement to judgment as a matter of law dismissing the JMOA defendants’ cross claim against it for common-law indemnification (see Mas v Two Bridges Assoc., 75 NY2d 680, 687 [1990]; Bryde v CVS Pharmacy, 61 AD3d 907 [2009]; Coque v Wildflower Estates Devs., Inc., 31 AD3d 484, 489 [2006]; 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80-81 [1999]; Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 146 AD2d at 199-200 ).

2012The plaintiff in its complaint sought to recover damages from the Town based on breach of contract and in quantum meruit. “[P]urely economic loss resulting from a breach of contract does not constitute ‘injury to property’ within the meaning of New York’s contribution statute [CPLR 1401]” (Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 26 [1987]).

2001Further, 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).

2017Here, Sosa did not seek leave to interpose a cross claim, and thus, the cross claim was not *821 properly before the court (see CPLR 402; Matter of Aguirre v Hernandez, 131 AD3d 716, 716-717 [2015]; Matter of White v Bilal, 21 AD3d 573, 574 [2005]; Matter of Koplen v Austin, 5 AD3d 515, 516 [2004]).

2015As Hernandez did not seek leave to interpose a cross claim, it was not properly before the court (see CPLR 402; Matter of White v Bilal, 21 AD3d 573, 574 [2005]; Matter of Koplen v Austin, 5 AD3d 515, 516 [2004]; Matter of Zenosky v Graziani, 288 AD2d 843, 843 [2001]; Matter of O’Connor v D’Apice, 156 AD2d 610 , 612 [1989]).

2022In view of the foregoing, the motion court correctly declined to dismiss the cross claim for common-law indemnification and contribution brought against Jacobi by defendants Normandie Condominium, Board of Managers of the Normandie Condominium and Metro Management and Development, Inc. ( see McCarthy v Turner Constr., Inc., 17 NY3d 369, 374-375 [2011]; see also Schauer v Joyce , 54 NY2d 1, 5 [1981]).

2008Further, the Supreme Court properly dismissed the cross claim of Pollack as against Young for contribution and/or indemnification based upon its original determination that any legal malpractice by Young was not a proximate cause of the plaintiffs’ alleged damages (see Schauer v Joyce, 54 NY2d 1, 5 [1981]; Crimi v Black, 219 AD2d 610 [1995]; Sherman v Ansell, 207 AD2d 537 [1994]).