Esteva v Nash
2008 NY Slip Op 08247 [55 AD3d 474]
October 30, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 10, 2008

Paul A. Esteva et al., Plaintiffs,
Kevin J. Nash, Esq., et al., Defendants. Kevin J. Nash, Esq., et al., Third-Party Plaintiffs-Appellants, v Michelle Ferguson, Esq., et al., Third-Party Defendants, and Fundex Capital Corporation, Third-Party Defendant-Respondent.

[*1] Lewis Brisbois Bisgaard & Smith LLP, New York (Cristina R. Yannucci of counsel), for appellants.

Robbins & Associates, P.C., New York (James A. Robbins of counsel), for respondent.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 9, 2007, which, to the extent appealed from as limited by the briefs, granted the motion of third-party defendants Greenwald and Fundex to dismiss the third-party complaint against them, and denied third-party plaintiffs' cross motion to file a proposed amended third-party complaint for common-law indemnification for the alleged aiding and abetting of a breach of fiduciary duty, unanimously affirmed, with costs.

As we have previously held, "A party sued solely for its own alleged wrongdoing, rather than on a theory of vicarious liability, cannot assert a claim for common law indemnification" (Mathis v Central Park Conservancy, 251 AD2d 171, 172 [1998]). Here, the complaint did not propound any theory that defendants were vicariously liable to plaintiffs by dint of third-party defendant Fundex's actions. As a result, defendants are not entitled to the common-law indemnification they seek in the third-party action (see Bleecker St. Health & Beauty Aids, Inc. v Granite State Ins. Co., 38 AD3d 231, 233 [2007]).

Furthermore, the court properly dismissed the contribution claim against Fundex for aiding and abetting a breach of fiduciary duty, and properly denied defendants' cross motion for leave to amend their third-party complaint. Indeed, neither the original third-party complaint nor the proposed amended version alleges any facts sufficient to suggest that Fundex provided [*2]substantial assistance to plaintiffs in their alleged breach of fiduciary duty. The aiding-and-abetting claim must thus fail (see Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 101 [2006], lv denied 8 NY3d 804 [2007]). Concur—Lippman, P.J., Mazzarelli, Williams, Buckley and Renwick, JJ. [See 2007 NY Slip Op 30584(U).]