On May 18, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Comfort Living Furniture Inc. v. McDonald Design Furniture Inc., 2023 NY Slip Op. 31691(U), holding that contribution was unavailable for a breach of contract claim, but was available for a negligence claim, explaining:
[I]t is well settled that contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person. CPLR §1401 states that where two or more persons (or entities) are subject to liability for the same personal injury, injury to property or wrongful death, they may claim contribution among them. Thus, contribution is only available where tort liability is sought in the underlying case. Thus, contribution is unavailable where damages sought are exclusively for breach of contract. An examination of the plaintiff’s third party complaint demonstrates the claims are based upon negligence in addition to breach of contract and consequently the motion seeking to dismiss the contribution cause of action is denied.
(Internal citations omitted).