The opinion
National Union Fire Ins. Co. of Pittsburgh, P.A. v
American Pipe & Tank Lining Co., Inc.
2024 NY Slip Op 30883(U)
March 18, 2024
Supreme Court, New York County
Docket Number: Index No. 654183/2022
Judge: Lyle E. Frank
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 654183/2022
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYLE E. FRANK PART 11M
Justice
----------------------------------------------------------------- ----------------X INDEX NO. 654183/2022
NATIONAL UNION FIRE INSURANCE COMPANY OF
10/17/2023,
PITTSBURGH, P.A.,
MOTION DATE 12/04/2023
Plaintiff,
MOTION SEQ. NO. 003 004
- V -
AMERICAN PIPE & TANK LINING CO., INC., DECISION + ORDER ON
MOTION
Defendant.
------------------------------------------------------------------- --------------X
AMERICAN PIPE & TANK LINING CO., INC. Third-Party
Index No. 595434/2023
Plaintiff,
-against-
Defendant.
-------------------------------------------------------------------------------- X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 81, 82, 83, 84, 85,
86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99,100,104,106,107,119
were read on this motion to/for DISMISS
The following e-filed documents, listed by NYSCEF document number (Motion 004) 101, 102, 103, 105,
108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 120
were read on this motion to/for DISMISS
This matter arises out of defendant/third-party plaintiff American Pipe & Tank Lining
Co., Inc.' s ("American Pipe") failure to notify its gap insurance carrier of a potential claim. As a
result, American Pipe's excess insurer, Plaintiff National Union Fire Insurance Company of
Pittsburgh, P.A. ("National Union") claims that it was caused to pay $1,210,751.24 more than
what it was obligated to pay under the excess insurance policy that it issued to American Pipe.
654183/2022 Motion No. 003 004 Page 1 of4
1 of 4
[* 1]
INDEX NO. 654183/2022
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024
Third-party defendant/second third-party plaintiff, Insurance Office of America ("IOA''),
commenced the second third-party action against second third-party defendants, ICA Risk
Management Consultants ("ICA"), and Ryan Services Group, LLC (D/B/A RSG Insurance
Services, LLC), Ryan Specialty, LLC (F/K/A Ryan Specialty Group, LLC), RSG Specialty, LLC
(F/K/A R-T Specialty, LLC) (collectively "RT"), for contribution or common-law
indemnification.
Second third-party defendants move separately, motions sequences 003 and 004, to
dismiss the second third-party complaint pursuant to CPLR § 321 l(a)(1)1, and (7). For the
reasons set forth below, both motions to dismiss are granted.
Standard of Review
When considering a motion to dismiss based upon CPLR § 3211(a)(7), the court must
accept the alleged facts as true, accord the plaintiff the benefit of every possible favorable
inference, and determine whether the facts alleged fit into any cognizable legal theory. Leon v
Martinez, 84 NY2d 83 [1994]. On a motion to dismiss the court "merely examines the adequacy
of the pleadings", the court "accept as true each and every allegation made by plaintiff and limit
our inquiry to the legal sufficiency of plaintiffs claim." Davis v Boeheim, 24 NY3d 262, 268
[2014].
Discussion
IOA alleges, that ICA and RT were negligent in failing to notify American Pipe's
insurers of potential claims. The second third-party complaint seeks indemnification and
contribution from ICA and RT.
1
Only ICA seeks dismissal pursuant to this provision.
654183/2022 Motion No. 003 004 Page 2 of 4
2 of 4
[* 2]
INDEX NO. 654183/2022
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024
Here, ICA and RT have established primafacie entitlement to dismissal of the second
third-party complaint. First, ICA and RT have established that the complaint fails to allege a
viable cause of action for common law indemnity. It is undisputed that the underlying action
alleges IOA breached its contract with American Pipe in failing to timely notify its insurer, thus
any finding of fault would be based on IOA' s conduct or lack thereof, not based vicariously on
the acts of another (Bd. ofMgrs. of Olive Park Condominium v Maspeth Props., LLC, 170 AD3d
645, 647 [2d Dept 2019]). Neither the second-third party complaint nor in opposition does IOA
allege any legal or factual support to sustain its common-law indemnification cause of action.
Thus, the cause of action for common law indemnification is dismissed.
As to the claim for contribution the second third-party defendants have established
entitlement to dismissal of the claim, as the damages sought in the present action are purely
economic and arise solely as the result of the various parties' contractual obligations. The Court
of Appeals has held that contribution is not available for economic loss resulting solely from a
breach of contract Board ofEducation of Hudson City School District v Sargent, Webster,
Crenshaw & Folley, 71 NY2d 21, 24 [1987]. The Court is not persuaded by IOA's attempt to
style the underlying action as a tort action based on the allegation that it negligently breached the
contract.
As the Court finds the second third-party complaint fails to state a cause of action, the
Court does not reach the issue of whether or not documentary evidence establishes a complete
defense to the underlying action. Accordingly, it is hereby
ORDERED that the second third-party complaint is dismissed in its entirety; and it is
further
ORDERED that the Clerk is directed to enter judgment accordingly.
654183/2022 Motion No. 003 004 Page 3 of 4
3 of 4
[* 3]
INDEX NO. 654183/2022
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024
3/18/2024
DATE LYLE E. FRANK, J.S.C.
~ ~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
□ DENIED
□
GRANTED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
654183/2022 Motion No. 003 004 Page4 of 4
4 of 4
[* 4]