On October 23, 2023, Justice Gomez of the Bronx County Commercial Division issued a decision in Green Castle A. Mgmt Corp. v. B&V Dev., LLC, 2023 NY Slip Op. 51126(U), holding that third-party claims should be dismissed because they were not based on indemnification or contribution, explaining:
[T]he instant third-party action is not rooted in claims for indemnity and/or contribution and therefore must be dismissed.
CPLR § 1007 prescribes when third-party practice is allowed in an action. Specifically,
[a]fter the service of his answer, a defendant may proceed against a person not a party who is or may be liable to that defendant for all or part of the plaintiff’s claim against that defendant, by filing pursuant to section three hundred four of this chapter a third-party summons and complaint with the clerk of the court in the county in which the main action is pending, for which a separate index number shall not be issued but a separate index number fee shall be collected. The third-party summons and complaint and all prior pleadings served in the action shall be served upon such person within one hundred twenty days of the filing. A defendant serving a third-party complaint shall be styled a third-party plaintiff and the person so served shall be styled a third-party defendant. The defendant shall also serve a copy of such third-party complaint upon the plaintiff’s attorney simultaneously upon issuance for service of the third-party complaint on the third-party defendant.
Accordingly, a third-party action is limited to actions where a defendant seeks to hold a third-party liable for all of a plaintiff’s claims against said defendant, meaning liability rooted in indemnity or contribution.
When a third-party action does not plead causes of action conditioned or arising from the main action against the defendant/third-party plaintiff a third-party action is inappropriate. Indeed, generally, a third-party complaint which seeks affirmative relief against the third party defendant for damages independently claimed to have been sustained by the third party plaintiff and which claim has no bearing upon the claim of the main plaintiff. Moreover, insofar as in a proper third-party action, the claims therein are derivative of the main action, dismissal of the first party action necessarily warrants dismissal of the third-party complaint.
Here, a review of the third-party complaint and the causes of action asserted therein establish that rather than seeking to hold third-party defendant liable for defendants’ potential liability to plaintiff, defendants instead assert independent causes of action for an accounting, diversion of trust funds, attorney fees unjust enrichment and conversion. Indeed, the third-party complaint merely rehashes five of the twelve counterclaims interposed by defendants against plaintiff within their answer and because third-party defendant is not a party to the first-party action, asserts many of the counterclaims asserted against the only plaintiff as direct causes of action against third-party defendant.
Again, a third-party action is limited to actions where a defendant seeks to hold a third-party liable for all of a plaintiff’s claims against the defendant/third-party plaintiff, meaning liability rooted in indemnity or contribution. Accordingly, when a third-party action does not plead causes of action conditioned or arising from the main action against the defendant/third-party plaintiff, it is inappropriate and should be dismissed.
To the extent that here, the third-party complaint is utterly bereft of any claims for contribution and/or indemnification against third-party defendant, it must be dismissed for this reason alone. Moreover, since generally, a third-party complaint which seeks “affirmative relief against the third party defendant for damages independently claimed to have been sustained by the third party plaintiff and which claim has no bearing upon the claim of the main plaintiff” (Otto v Wegner, 11 Misc 2d 499, 499 [App Term 1958]), warrants dismissal of the third-party complaint (id. at 499), here, where each cause of action asserted against third-party defendant seeks independent affirmative relief for independent wrongs alleged to have been committed by him, dismissal is warranted for this additional reason.
(Internal quotations and citations omitted).