Children\\\\\\\\\\\\\\\'s Corner Learning Center, Plaintiff-Respondent, v
            A. Miranda Contracting Corp., et al., Defendants. Henry
               Loheac, P.C., Third-Party Plaintiff-Respondent, MF
               Electrical Service Co., Inc., et al., Third-Party
            Defendants, George E. Berger & Associates, LLC, et al.,
                       Third-Party Defendants-Appellants.

                            6869, 22026/05, 85253/06

              SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST
                                   DEPARTMENT

              2009 NY Slip Op 4015; 2009 N.Y. App. Div. LEXIS 3806


                             May 21, 2009, Decided
                             May 21, 2009, Entered

NOTICE:

   THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF
THE FINAL PUBLISHED VERSION.    THIS OPINION IS UNCORRECTED AND SUBJECT TO
REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

COUNSEL:  Gogick, Byrne & O\\\\\\\\\\\\\\\'Neill, LLP, New York (Anthony W. Vaughn, Jr. of
counsel), for George E. Berger & Associates, LLC, appellant.

Zeichner Ellman & Krause LLP, New York (Bryan D. Leinbach and Barry J. Glickman
of counsel), for JAM Consultants, Inc., appellant.

Ellen Rothstein, New York, for Children\\\\\\\\\\\\\\\'s Corner Learning Center, respondent.

Milber Makris Plousadis & Seiden, LLP, Woodbury (Sarah M. Ziolkowski and Lorin
A. Donnelly of counsel), for Henry Loheac, P.C., respondent.

JUDGES: Luis A. Gonzalez, P.J., Angela A. Mazzarelli, Richard T. Andrias, Karla
Moskowitz, Dianne T. Renwick, JJ. Opinion by Mazzarelli, J. All concur.

OPINION BY: Angela A. Mazzarelli

OPINION

   Third-party defendants George E. Berger & Associates, LLC and JAM
Consultants, Inc., appeal from an order of the Supreme Court, Bronx County
(Wilma Guzman, J.), entered July 16, 2007, which, to the extent appealed from,
denied their cross motions for summary judgment dismissing defendant-third-party
plaintiff-respondent\\\\\\\\\\\\\\\'s common-law claims for contribution and/or indemnification
.

   MAZZARELLI, J.

   In March 2004, plaintiff retained defendant Henry Loheac, P.C. to provide
architectural services for plaintiff\\\\\\\\\\\\\\\'s planned conversion of premises it leased
into a day care center. Plaintiff alleges that it advised Loheac that it
intended to begin operating the day care center in January 2005. Plaintiff also
claims that Loheac assured it that all necessary construction permits and
licenses would be obtained by November 2004. Construction was delayed, causing
the day care center to open approximately six months later than the target date
of January 2005.

   Thereafter, plaintiff commenced this action against Loheac, A. Miranda
Contracting Corp. (plaintiff\\\\\\\\\\\\\\\'s general contractor), Newman Design Group (the
architect retained by the building\\\\\\\\\\\\\\\'s owner), MF Electrical Service Co., Inc.
(the electrical subcontractor hired by the general contractor) and High Rise
Fire Protection Corp. (the fire alarm installer allegedly hired by either the
general contractor or the electrical subcontractor). Plaintiff\\\\\\\\\\\\\\\'s claims against
Loheac are found in the fourth, fifth and sixth causes of action in the
complaint. In the fourth cause of action, plaintiff asserts Loheac breached its
contract by, generally, failing to perform its work in a timely fashion. As a
result, plaintiff alleges it was unable to obtain the licenses necessary to open
a fully operational day care center in January 2005. Plaintiff says it was
damaged because it:


        \\\\\\\\\\\\\\\"was caused to incur additional expenses to help correct the
     defective, faulty, improper and inadequate work caused by Loheac\\\\\\\\\\\\\\\'s
     breach of contract so that Plaintiff could open and operate as a fully
     licensed day care center...\\\\\\\\\\\\\\\"



   The fifth cause of action also sounds in breach of contract. Plaintiff claims
that Loheac caused it \\\\\\\\\\\\\\\"unanticipated, uncontemplated and/or unreasonable delay
and disruption\\\\\\\\\\\\\\\" by not obtaining the necessary licenses and permits for, and
otherwise failing to properly supervise the installation of, a fire alarm
system. In the fifth cause of action, plaintiff maintains it was damaged to the
extent that it:


        \\\\\\\\\\\\\\\"has incurred, expended or has been deprived of payment and damaged
     for all consequential and inconsequential damages, including, but not
     limited to, those  incurred for additional labor, supervision,
     supplies, material, equipment, and losses for rent and additional
     rent, loss of operating expenses, and lost profits...\\\\\\\\\\\\\\\"



   Plaintiff asserts in the sixth cause of action that Loheac was negligent in
the performance of its duties, and that its acts and omissions constituted
professional malpractice. The factual allegations supporting this cause of
action are substantially similar to those underlying both the fourth and fifth
causes of action. In the sixth cause of action, plaintiff claims that it was
damaged to the extent that:


        \\\\\\\\\\\\\\\"opening of the day care center was severely disrupted and impeded
     and was rendered uneconomical and costly beyond its anticipation or
     reasonable expectation; among other things, Plaintiff was delayed from
     opening for six months, or more than 100% of the original contract
     period; Plaintiff\\\\\\\\\\\\\\\'s planned opening was delayed into seasons contrary
     to the original schedule; Plaintiff was forced to incur additional
     expenses to be able to open the day care center on an interim basis
     and on a full time basis; Plaintiff\\\\\\\\\\\\\\\'s initial advertising and initial
     operating costs were rendered a loss, as Plaintiff was unable to open
     as scheduled; Plaintiff was deprived of the benefit of its bargain
     with its landlord in that Plaintiff was unable to fully operate during
     the initial six month lease period in which Plaintiff had been given a
     100% rent abatement; Plaintiff was deprived of the ability to collect
     revenues from which to pay, among other things, operating expenses;
     Plaintiff was deprived of its profits to be derived from the fully
     operational the day care center (sic) for approximately six months;
     the value of the Premises was diminished based upon Plaintiff\\\\\\\\\\\\\\\'s
     inability to utilize same in the manner intended, at the capacity
     intended and of which defendant was fully aware for approximately six
     months.\\\\\\\\\\\\\\\"



   Loheac commenced a third-party action against, among others, appellants
George E. Berger and Associates and JAM Consultants, Inc. The third-party
complaint identified both Berger and JAM as having been retained by plaintiff,
the building owner or the property manager \\\\\\\\\\\\\\\"as an expediter with respect to the
filing of applications, to obtain permits, licenses and other approvals of the
work performed at the subject building including but not limited to the
electrical system, fire sprinkler system and alarm system.\\\\\\\\\\\\\\\" Loheac alleges in
the third-party complaint that Berger and JAM \\\\\\\\\\\\\\\"failed to possess the requisite
skill, knowledge and ability to obtain such permits\\\\\\\\\\\\\\\" and that their \\\\\\\\\\\\\\\"fail[ure]
to obtain the necessary permits, approvals and licenses within a reasonable time
period result[ed] in the delayed opening of the daycare center by the plaintiff
and the alleged damages sustained as a result thereof.\\\\\\\\\\\\\\\" Loheac therefore seeks
\\\\\\\\\\\\\\\"common law contribution or indemnification\\\\\\\\\\\\\\\" from Berger and JAM in the event it
is found liable to plaintiff. In the third-party complaint Loheac also pleaded
claims for contractual contribution or indemnification against Berger and JAM as
well as damages based on the alleged failure of Berger and JAM to procure
insurance on Loheac\\\\\\\\\\\\\\\'s behalf.

   Defendant Newman Design Group moved, pursuant to CPLR 3211(a)(7), to dismiss
plaintiff\\\\\\\\\\\\\\\'s complaint as against it. Berger and JAM separately cross-moved,
under CPLR 3211(a)(7) and 3212, to dismiss the third-party complaint as against
them. Berger argued that because plaintiff\\\\\\\\\\\\\\\'s complaint only sought economic loss
damages from Loheac, no claim for common-law contribution or indemnification was
available. Berger further stated that no agreements existed between it and
Loheac that required it to indemnify Loheac or to procure insurance. JAM made
the same arguments as Berger. However, it also argued that Loheac was precluded
from seeking common-law indemnity because plaintiff had alleged active
wrongdoing against Loheac.

   In opposition to the cross motions by Berger and JAM, Loheac stressed that
the claims made by plaintiff against it included a claim for professional
malpractice, in addition to those for breach of contract. The possibility it
might be found liable in tort, Loheac asserted, permitted it to make claims for
common-law contribution and indemnity. In opposing the cross motions, Loheac did
not identify any agreements between it and either Berger or JAM that supported
its claims against them for contractual indemnification and breach of contract.

   The motion court granted the cross motions of Berger and JAM only to the
extent of dismissing Loheac\\\\\\\\\\\\\\\'s third-party claims for contractual indemnification
and breach of contract. This was based on Loheac\\\\\\\\\\\\\\\'s failure to oppose those parts
of the cross motions which addressed those claims. However, the court refused to
dismiss the claims for common-law contribution and indemnification. Relying on
Tower Bldg. Restoration v 20 E. 9th St. Apt. Corp. (295 AD2d 229 [2002]), the
court held that plaintiff\\\\\\\\\\\\\\\'s claim for professional malpractice against Loheac
supported Loheac\\\\\\\\\\\\\\\'s third-party claims against Berger and JAM. The court further
held that Loheac stated valid causes of action against Berger and JAM for
common-law indemnification by alleging that Loheac\\\\\\\\\\\\\\\'s failure to obtain permits
in a timely fashion was solely the result of the negligence of Berger and JAM.

   Loheac\\\\\\\\\\\\\\\'s claim for common-law contribution against both Berger and JAM should
have been dismissed. Where, as here, the underlying claim seeks purely economic
damages, a claim for common-law contribution is not available. CPLR 1401
codified the concept of common-law contribution recognized by the Court of
Appeals in Dole v Dow Chem. Co. (30 NY2d 143 [1972]). That section spells out
the circumstances in which a party may seek contribution from another party.
They are as follows:


        \\\\\\\\\\\\\\\"Except as provided in sections 15-108 and 18-201 of the general
     obligations law, sections eleven and twenty-nine of the workers\\\\\\\\\\\\\\\'
     compensation law, or the workers\\\\\\\\\\\\\\\' compensation law of any other state
     or the federal government, two or more persons who are subject to
     liability for damages for the same personal injury, injury to property
     or wrongful death, may claim contribution among them whether or not an
     action has been brought or a judgment has been rendered against the
     person from whom contribution is sought.\\\\\\\\\\\\\\\"



   In the cases which have followed since the Court of Appeals decided Dole v
Dow Chem. Co. and this statute was enacted, it is well established that \\\\\\\\\\\\\\\"purely
economic loss resulting from a breach of contract does not constitute injury to
property\\\\\\\\\\\\\\\'\\\\\\\\\\\\\\\" (Board of Educ. of Hudson City  School Dist. v Sargent, Webster,
Crenshaw & Folley, 71 NY2d 21, 26 [1987]). In Sargent, a case similar to this,
the plaintiff, a school district, commenced a breach of contract action against
the architectural firm that designed a school construction project and the
general contractor that built the school. The school\\\\\\\\\\\\\\\'s roof began to leak
shortly after construction was completed. The school district claimed that the
architects breached their contract with the district by not obtaining proper
approval of the roofing subcontractor and by failing to secure a guarantee from
the roof manufacturer. The architects sought contribution from the general
contractor. In that case, the Court of Appeals, after reviewing Dole v Dow Chem.
Co. and the legislative history of CPLR 1401, did not allow contribution. It
stated that:


        \\\\\\\\\\\\\\\"To permit apportionment of liability, pursuant to CPLR 1401,
     arising solely from breach of contract would not only be at odds with
     the statute\\\\\\\\\\\\\\\'s legislative history, but also do violence to settled
     principles of contract law which limit a contracting party\\\\\\\\\\\\\\\'s liability
     to those damages that are reasonably foreseeable at the time the
     contract is formed\\\\\\\\\\\\\\\" (71 NY2d at 28).



   Loheac tries to distinguish the present matter from Sargent. It argues that,
unlike here, there was no claim for professional malpractice in Sargent,
asserting that the presence of a tort claim against it in this action permits a
claim for contribution.

   While claims for professional malpractice and breach of contract may
co-exist, even though both arise out of the professional\\\\\\\\\\\\\\\'s contractual
obligations (see Sommer v Federal Signal Corp., 79 NY2d 540, 551 [1992]; 17
Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 83 [1999])
, Loheac\\\\\\\\\\\\\\\'s argument must be rejected. This is because the touchstone for
purposes of whether one can seek contribution is not the nature of the claim in
the underlying complaint but the measure of damages sought therein (see Trump
Vil. Section 3 v New York State Hous. Fin. Agency, 307 AD2d 891, 897 [2003], lv
denied 1 NY3d 504 [2003]; Rothberg v Reichelt, 270 AD2d 760, 762 [2000];
Rockefeller Univ. v Tishman Constr. Corp. of N.Y., 240 AD2d 341, 343 [1997], lv
denied 91 NY2d 803 [1997]). Here, the damages sought from Loheac are economic
only. That is, plaintiff seeks only to be returned \\\\\\\\\\\\\\\"to the point at which the
breach arose and to [be placed] in as good a position as it would have been\\\\\\\\\\\\\\\" had
Loheac secured the permits in a timely fashion (Brushton-Moira Cent. School
Dist. v Thomas Assoc., P.C., 91 NY2d 256, 261 [1998]). That Loheac seeks the
same measure of damages for breach of contract as for professional malpractice
is confirmed by the fact that the specific damages sought in the fifth cause of
action for breach of contract are substantially similar to the specific damages
sought in the sixth cause of action for professional malpractice. In arguing to
the contrary, Loheac relies, as did the motion court, on Tower Bldg. Restoration
v 20 East 9th St. Apt. Corp. (295 AD2d 229 [2002], supra). However, that case is
distinguishable. Although the decision in Tower Bldg. Restoration did not
specify the nature of the damages sought against the fourth-party plaintiff
architect, a review of the briefs does. They reveal that the third-party
plaintiff there, a cooperative apartment corporation, sought traditional tort
damages from the architect in connection with the architect\\\\\\\\\\\\\\\'s alleged damaging
of the floor and roof of one of the apartments in the building. In this case,
plaintiff does not claim any damages that seek traditional tort  remediation.

   Loheac\\\\\\\\\\\\\\\'s reliance on Castle Vil. Owners Corp. v Greater N.Y. Mut. Ins. Co.
(58 AD3d 178 [2008]) is also misplaced. The claim there against the third-party
plaintiff engineering firm was that its malpractice directly led to the collapse
of a retaining wall. The plaintiff sought traditional tort damages in connection
with the collapse, and not just the benefit of its bargain with the engineering
firm. As a result, this Court upheld the firm\\\\\\\\\\\\\\\'s contribution claim against the
engineers whom it had hired to design and implement certain corrective measures
for the stability of the wall.

   Loheac also looks to the Third Department\\\\\\\\\\\\\\\'s decision in Robinson
Redevelopment Co. v Anderson (155 AD2d 755 [1989]) for support. In that case,
the Third Department held that contribution is available even where the
plaintiff seeks purely economic damages as a result of professional malpractice.
However, this Court has expressly declined to follow Robinson (see Rockefeller
Univ. v Tishman Constr. Corp. of N.Y., 240 AD2d at 343). Moreover, the Third
Department has implicitly overruled Robinson (see Rothberg v Reichelt, 270 AD2d
at 762 [2000] [citing Rockefeller University in dismissing common-law
contribution claim where plaintiff\\\\\\\\\\\\\\\'s underlying complaint sought only the
benefit of a contractual bargain]).

   Loheac\\\\\\\\\\\\\\\'s common-law indemnification claim against JAM should also have been
dismissed pursuant to CPLR 3212. In support of its motion, JAM submitted the
affidavit of a project manager who stated that JAM\\\\\\\\\\\\\\\'s duties on the project were
limited to \\\\\\\\\\\\\\\"pre-fil[ing]\\\\\\\\\\\\\\\" an application concerning, among other things, the
sprinkler system, with the Department of Buildings on behalf of Loheac. He
asserted that he did this \\\\\\\\\\\\\\\"promptly, in good faith and in accordance with the
reasonable commercial standards of its business.\\\\\\\\\\\\\\\" The project manager further
averred that after he learned that the Department would not approve the
application before the premises were approved for use as a day care center, he
communicated that information to Loheac. Finally, the project manager claimed
that JAM had no involvement with the process that ultimately resulted in
plaintiff becoming approved to operate a day care center. Loheac failed to
refute any of the foregoing. Thus, its claim for common-law indemnification
against JAM should have been dismissed.

   However, Loheac\\\\\\\\\\\\\\\'s claim for common-law indemnification against Berger should
continue. On a motion pursuant to CPLR 3211(a)(7) we accept all factual
allegations in the pleading as true. Loheac unquestionably pleaded that
plaintiff (or, alternatively, the building owner or property manager) hired
Berger as an expediter, and that it was responsible for obtaining permits and
licenses. If plaintiff did indeed retain Berger to timely obtain necessary
licenses and permits, then the possibility exists that an ultimate finding of
liability against Loheac could have been solely due to Berger\\\\\\\\\\\\\\\'s negligence (see
17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d at 83;
Trustees of Columbia Univ. v Mitchell/Giurgola Assoc., 109 AD2d 449, 453 [1985])
. To the extent that Berger moved to dismiss the common-law indemnification
claims against it pursuant to CPLR 3212, it, unlike JAM, failed to tender
evidence sufficient to negate that possibility as a matter of law.

   Accordingly, the order of the Supreme Court, Bronx County (Wilma Guzman, J.),
entered July 16, 2007, which, to the extent appealed from, denied the cross
motions of third-party  defendants-appellants for summary judgment dismissing
defendant-third-party plaintiff-respondent\\\\\\\\\\\\\\\'s common-law claims for contribution
and/or indemnification, should be modified, on the law, to grant summary
judgment to third-party defendant-appellant JAM Consultants, Inc. dismissing the
third-party complaint as against it, and to grant summary judgment to
third-party defendant-appellant George E. Berger & Associates, LLC dismissing
defendant-third-party plaintiff-respondent\\\\\\\\\\\\\\\'s common-law claim for contribution,
and otherwise affirmed, without costs.

   All concur.

   Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered July 16, 2007,
modified, on the law, to grant summary judgment to third-party
defendant-appellant JAM Consultants, Inc. dismissing the third-party complaint
as against it, and to grant summary judgment to third-party defendant-appellant
George E. Berger & Associates, LLC dismissing defendant-third-party
plaintiff-respondent\\\\\\\\\\\\\\\'s common-law claim for contribution, and otherwise
affirmed, without costs.

   Opinion by Mazzarelli, J. All concur.

   Gonzalez, P.J., Mazzarelli, Andrias, Moskowitz, Renwick, JJ.

   THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.

   ENTERED: MAY 21, 2009