Consolidated for disposition are motion sequence numbers 013, 014, 015, 016, 017, and 018. In motion sequence number 016, plaintiff moves for summary judgment against the following defendants: Abraham Markowitz a/k/a Avi Markowitz a/k/a Abraham Lebovice (Markowitz) for damages in the amount of $238,950; Siegfried Kovacs for $292,560; Joseph Collins for $44,580; Albert Pullini and Americo Pullini for $85,500 jointly; Carl Termine for $6,720; and Mike Liebhard for $426,570. The following defendants move for summary [*2]judgment dismissing the claims against them: Liebhard in motion sequence number 013; Markowitz in motion sequence number 014; Albert Pullini and Americo Pullini in motion sequence number 015; Kovacs in motion sequence number 017; and Termine in motion sequence number 018.

This litigation stems from fraud in the federally funded Toilet Rebate Program (the TRP), run by the City of New York, Department of Environmental Preservation (the DEP) from 1993 through 1997. The DEP hired plaintiff to administer the program, which was designed to encourage building owners to replace water wasting toilets with newer water saving models. Building owners who replaced toilets received a rebate from the DEP. The procedure was for the building owner to contract with a licensed master plumber and to submit an application to plaintiff. Upon approval of the application, plaintiff would inform the owner that work should commence. After replacing the toilets in a building, the building owner or the plumber would submit a PIP (a post installation package) to plaintiff for a rebate. The PIP contained the plumber's invoice, a worksheet with the building address and number of toilets replaced, and a drop-off receipt showing that the plumber had disposed of the old toilets at a designated site. Plaintiff's personnel stationed at the disposal sites issued the drop-off receipts to the plumbers.

Then plaintiff would visit the building and inspect a random 20% of the new toilets. If the building passed inspection and plaintiff approved the PIP, it would prepare a rebate check and send it to the DEP. The DEP would sign the check and send it back to plaintiff for delivery to the building owner.

At her deposition, Nahed William, an assistant vice president of plaintiff, testified that the DEP paid plaintiff a fee for each rebate check issued by the DEP and for each toilet that plaintiff inspected (Markowitz notice of motion, Ex. C, William deposition transcript [tr.], at 106-107). In all, the DEP paid plaintiff approximately $12 million (id. at 39).

Early in the TRP, according to the December 2002 report prepared by the DEP, plaintiff's employees began to accept bribes from plumbers in return for expediting applications and PIPs (Kovacs notice of motion, Ex. O). Employees also made inspection reports that inflated the number of toilets replaced and prepared false drop-off receipts. The plumbers submitted PIPs that falsified the number of toilets replaced and received rebates for work that they had not done. The plumbers paid the employees out of the rebates that resulted from the false reports. William and Warren Liebold, the DEP's principal, allege that the DEP issued $1,584,300 in unearned rebates (Plaintiff's notice of motion, William affidavit [aff.], ¶ 4; Ex. 3, Liebold tr., at 82-83).

In 1997, towards the end of the TRP, plaintiff discovered the fraud and informed the DEP. An investigation ensued and federal criminal charges were brought against those involved in the deception. Twelve individuals, four of them plaintiff's employees, pleaded guilty to various charges. Because of the fraud, the DEP refused to pay plaintiff's final 10 invoices, which amounted to $1,164,612.44, and plaintiff's retention amount of $272,422. Plaintiff brought this action against the individual plumbers, their companies, and other persons associated with the plumbers. Plaintiff seeks from each defendant the amount of fraudulent rebates that the defendant allegedly caused to be issued. The total amount of damages sought in this motion is $1,094,880.

Plaintiff's complaint sounds in the following causes of action: fraud (first cause of action), unjust enrichment (second), indemnification (third), inducement of breach of fiduciary obligation (fourth), commercial bribery (fifth), and injury to reputation and lost business and loss [*3]of value to business (sixth). Two previous decisions, dated January 9, 2006 and July 14, 2005, dismissed some causes of action, primarily because of their statutes of limitations. This action commenced on May 28, 2003. All of the causes of action accrued on October 27, 1997, which made most of them untimely, except for the cause of action for indemnification.

Plaintiff bases the instant motion for summary judgment on fraud and indemnification.

This discussion will first address issues that affect all of the movants and then move on to the individual defendants' cases.

I. Indemnification

Damages - Defendants claim that plaintiff is not entitled to recover the rebates, because the rebates were stolen from the DEP, not from plaintiff. In addition, defendants allege that plaintiff cannot be indemnified because it did not pay the DEP.

The principle of indemnification permits a person who has done no wrong, but who is nonetheless compelled to pay an injured party, to recover from the actual wrongdoer who caused the injury (17 Vista Fee Assoc. v Teachers Ins. and Annuity Assn. of Am., 259 AD2d 75, 80 [1st Dept 1999]). "In the classic case, implied indemnity permits one held vicariously liable solely on account of the negligence of another to shift the entire burden of the loss to the actual wrongdoer" (id.; see also Mas v Two Bridges Assoc., 75 NY2d 680, 690 [1990]). Plaintiff alleges that defendants caused the DEP to lose money, that plaintiff reimbursed the DEP, and that defendants must reimburse plaintiff for what plaintiff paid the DEP. Assuming that defendants stole from the DEP, it is right that defendants compensate plaintiff.

Defendants are correct that plaintiff did not actually pay the DEP. The so-called reimbursement is the DEP's retention of the fees owed plaintiff. But this fact does not prevent plaintiff from being indemnified. The DEP's retention of the fees is equivalent to plaintiff's paying the DEP.

Defendants' next objection is that plaintiff seeks to recover what it never owned. Again, plaintiff's restitution to the DEP for the rebates took the form of plaintiff's fees. It is reasonable that plaintiff should seek from each defendant the amount that the defendant allegedly took from the DEP. It is a reasonable way of allocating damages amongst defendants.

However, a difficulty arises in the case of defendant Markowitz, who was convicted of crimes in connection with the TRP and who was ordered to pay restitution to the government for stolen rebates. Markowitz correctly argues that he cannot be compelled to pay the same damages to plaintiff. Plaintiff will have to arrive at another method of calculating damages as against him.

Timeliness of the indemnification claim - In its July 14, 2005 decision, the court determined that the indemnification claim accrued on October 27, 1997, when the DEP informed plaintiff that it would no longer pay plaintiff's invoices. The court determined that plaintiff suffered a loss on that date in that it, in effect, reimbursed the DEP for the stolen rebates. As this case commenced on May 28, 2003, the court determined that the indemnification claim was made within six years of the claim accruing and was timely (see McDermott v City of New York, 50 NY2d 211, 217 [1980]). Since then, Kovacs has learned of two other letters that the DEP wrote to plaintiff, dated January 10, 1997 and October 2, 1996. Kovacs contends that the indemnification claim accrued on one of these dates.

The October 2, 1996 letter from the DEP to plaintiff requested information about the projects of one inspector (Kovacs notice of motion, Ex. R). The DEP wrote that it would not pay [*4]plaintiff's fees associated with one application concerning that inspector, as plaintiff dismissed that person because "he had falsified an Inspection report" (id.).

The January 10, 1997 letter stated that the DEP had serious concerns about some of the inspections conducted by four inspectors, stemming from false reports of inspections done or toilets installed (Kovacs notice of motion, Ex. S). The DEP wrote that it would withhold some or all of the fees associated with the work of those inspectors and that for 1995, the inspection fees associated with those inspectors totaled $101,430 and the rebates associated with them totaled $5,338,000. Plaintiff states that it investigated the charges in this letter, determined that no fraud had taken place, determined that the DEP's concerns were engendered by errors rather than deception, and so informed the DEP by letter (Plaintiff opposition, Ex. 4).

Plaintiff is not entitled to be indemnified for fees or any kind of damages arising out of the October 2, 1996 letter, except as against defendant Markowitz. That letter marks the DEP's final determination not to pay the fees mentioned therein, and the accrual date of claims based on those fees. This case began more than six years after indemnification claims based on those fees accrued.

It is otherwise with the January 10, 1997 letter. To the extent that those fees are included within the final 10 invoices, plaintiff may recover them or damages based on them. The court finds no reason to doubt plaintiff's assertion that the letter does not embody the DEP's final determination never to pay the fees mentioned therein. Consequently, a claim to be indemnified for those fees did not accrue on the date of the letter.

As defendant Markowitz was convicted of crimes associated with the TRP, the statute of limitations against him is extended to seven years or 10 years by CPLR 213-b, which allows a crime victim to pursue otherwise time-barred claims. The court discussed this issue in its January 9, 2006 decision.

Whether plaintiff participated in the wrong that injured the DEP - Indemnification is for the one who, without any fault of its own, is held liable to a third party by operation of law due to the fault of another (17 Vista Fee Assoc., 259 AD2d 75 at 80; City of New York v Lead Indus. Assn., 222 AD2d 119, 125 [1st Dept 1996]). The rule of indemnification is that the person actually liable must reimburse the person vicariously liable for all the damages that the latter paid to the injured person. One who has actually participated in the wrong may not be indemnified. Since plaintiff's employees engaged in the fraud, defendants contend that plaintiff cannot be indemnified.

An employer bears vicarious liability for an employee's torts if the acts were committed while the employee was acting within the scope of his or her employment (Adams v New York City Tr., Auth., 211 AD2d 285, 294 [1st Dept 1995], affd 88 NY2d 116 [1996]). Liability will not attach for torts committed by an employee solely for personal motives unrelated to the furtherance of the employer's business (id.). Contrary to defendants' arguments, if plaintiff's employees' fraudulent activity was within the scope of their employment, such fact by itself would not bar plaintiff from being indemnified. In such a case, plaintiff's liability would be vicarious.

Where an employer cannot be held vicariously liable for torts committed by its employee, the employer can still be held liable under theories of negligent supervision. The negligence of the employer in such a case is direct, not vicarious, and arises from its having placed the employee in a position to cause foreseeable harm, harm which the injured party most probably [*5]would have been spared had the employer taken reasonable care in making its decision concerning the hiring and retention of the employee (see Detone v Bullit Courier Serv., Inc., 140 AD2d 278, 279 [1st Dept 1988]; see also Rodriguez v United Transp. Co., 246 AD2d 178, 180 [1st Dept 1998]). A necessary element of a negligent supervision cause of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (Manno v Mione, 249 AD2d 372, 372-373 [2d Dept 1998). In this instance, defendants must allege "particular facts or circumstances which would lead a reasonably prudent person to investigate the [employee's] propensities" (Visken v Oriole Realty Corp., 305 AD2d 493, 495 [2d Dept 2003]).

Generally, a claim for negligent supervision arises when a person alleges injury by an employee and seeks to hold the employer liable as well. Here, defendants use it as a defense. To the extent that plaintiff's negligence contributed to DEP's losses, defendants, though behaving fraudulently, may be entitled to have their damages reduced.

Evidence of plaintiff's alleged negligence in regard to supervising its employees is as follows. According to the DEP report, the TRP rules required that the building owner or agent had to be a party to the rebate check and plaintiff had to mail the check to the owner (Kovacs notice of motion, Ex. O). Alternatively, with the owner's written authorization, the plumber could be the second party on the check. The owner could also give written permission for the plumber to pick up the rebate check at plaintiff's office. However, plaintiff "frequently failed to honor these rules" (id. at 4).

Sherry Singh, an employee who was not implicated in the fraud, testified at her deposition that Anthony Senerchia, her superior, directed her to give checks that were supposed to be mailed to the owners to plumbers instead (Kovacs notice of motion, Ex. EE, Singh tr., at 41). Senerchia was an employee who pleaded guilty. Singh received a phone call from a building owner complaining that he did not receive a check that a plumber had cashed (id. at 43). When Singh informed Senerchia of the call, he "yelled and screamed" at her (id.). Singh reported these incidents to William (id. at 42, 43-44).

The DEP report further states that, in mid-1996, Frank Rizzo, another employee who pleaded guilty, and Senerchia began to hold private meetings with plumbers at plaintiff's office (Kovacs notice of motion, Ex. O). Sontag, a plumber who pleaded guilty, came to plaintiff's office several times a week to deliver cash to Senerchia and Rizzo. Plaintiff's employees told the DEP that "corrupt activity became commonplace within" the office (id. at 8). Several employees reported inappropriate activity to William and others, but no action was taken. The activity included money exchanges between an employee and several plumbers, as well as several incidents where Senerchia pulled checks from the pile for plumbers who did not have authorization to pick up checks.

Because of these allegations, the court finds that whether plaintiff ignored facts or circumstances that should have led it to investigate its employees' activities presents an issue of fact. However, there is no evidence to suggest that plaintiff intentionally did a wrong. The DEP concluded that plaintiff "as a company was not involved" and did not sue plaintiff for that reason (Plaintiff notice of motion, Ex. 3, Liebhold tr., at 39).

If the ultimate determination is that plaintiff is not entitled to indemnification because it participated in the wrong against the DEP, plaintiff may be entitled to contribution from defendants. When two or more tort-feasors share responsibility for an injury, they will be liable [*6]for damages in proportion to their respective degrees of fault (Garrett v Holiday Inns, Inc., 58 NY2d 253, 258-259 [1983]). The tort-feasor who paid the injured party an amount in excess of his or her proportionate share of the damages is entitled to contribution from the other tort-feasor. Although plaintiff does not explicitly ask for contribution, its claims for indemnification can be cast in that light. A cause of action for contribution accrues in the same manner as a cause of action for indemnification, when payment has been made by the party seeking to recover (see Rosenblum v Columbia Univ. School of Dental & Oral Surgery, 123 AD2d 587, 587 [1st Dept 1986]). Therefore, the contribution claim is timely.

II. Standing

Defendant Kovacs contends that plaintiff lacks standing to pursue this action. Defendant has waived the defense of lack of standing since he failed to assert the claim as an affirmative defense in his answer and waited until now to raise it (see Centaur Props., LLC v Farahdian, 29 AD3d 468, 468 [1st Dept 2006]; Charles Offset Co. v Hobart-McIntosh Paper Co., 192 AD2d 419, 419 [1st Dept 1993). In any event, the affidavit of Howard Weinrich, attached to the plaintiff's opposition to Kovacs' motion, satisfies the court that this argument has no merit.

III. Defendants' liability as individuals

Defendants argue that they are not responsible for the acts of the corporations for which they worked or which they owned. However, agents, officers, or employees of a corporation may be held personally liable for their tortious acts committed in the performance of their corporate duties (American Exp. Travel Related Services Co., Inc. v North Atl. Resources, Inc., 261 AD2d 310, 311 [1st Dept 1999]; First Bank of Americas v Motor Car Funding, Inc., 257 AD2d 287, 294 [1st Dept 1999]). The liability is regardless of whether the corporate veil is pierced (American, 261 AD2d 310, supra). Nor does the fact of being a shareholder insulate a defendant from allegations of fraud (see I. Towjer, Inc. v Tarran, 236 AD2d 518, 519 [2d Dept 1997] [denying summary judgment to sole shareholder and officer of corporate defendant, where the former negotiated the allegedly fraudulent transaction]; see also Ideal Steel Supply Corp. v Fang, 1 AD3d 562, 563 [2d Dept 2003]). The complaint will not be dismissed for the reason that defendants were corporate employees or owners.

IV. Plaintiff's evidence against defendants

The DEP report states that the TRP required a licensed master plumber as the plumber of record for each toilet replacement (Kovacs notice of motion, Ex. O). Any participating plumbing company had to be owned and operated by the master plumber. To take advantage of the TRP, people in the plumbing business created plumbing companies and retained licensed plumbers, "making them nominal owners of the new companies" (id. at 3). According to the report, some of the companies installed toilets without the participation or supervision of the master plumber, against the TRP rules.

These facts matter because in many instances, the only evidence against a defendant (apart from those convicted of crimes associated with the TRP) is that he was a licensed master plumber without whose participation or presence rebates could not have issued. Although each defendant claims to have known nothing about the fraud, the DEP would not have paid the rebate if the applications did not name a master plumber. For this reason, whether some of the defendants in these motions were involved in fraud is an issue of fact.

V. Defendant Abraham Markowitz

Markowitz was a licensed master plumber and a partner in Bayit Plumbing and Heating, [*7]Inc, that participated in the TRP. Markowitz and plaintiff's employee, Senerchia, agreed that Markowitz would falsify rebate applications and that Senerchia would falsify corresponding inspection reports. Markowitz gave Senerchia a portion of the fraudulently obtained rebates.

Markowitz pleaded guilty to conspiracy to defraud a federally funded program, fraud in connection with the federally funded program, conspiracy to commit money laundering, and tax evasion. The court ordered Markowitz to pay $900,000 in restitution.

Against Markowitz, plaintiff maintains causes of action for fraud, unjust enrichment, indemnification, and inducement of breach of fiduciary obligation. The other causes of action were dismissed in an earlier decision, primarily because of their statutes of limitations. The causes of action that were not dismissed would have been untimely, if not for CPLR 213-b.

Fraud - The elements of fraud are a representation known to be false, made with the intention of inducing reliance, the plaintiff's reliance on the misrepresentation, and detriment suffered by the plaintiff due to the reliance (Rivera v JRJ Land Property Corp., 27 AD3d 361, 364 [1st Dept 2006]). That Markowitz made false TRP applications, that plaintiff in reliance upon those applications caused the DEP to issue rebate checks, and that the unearned rebates caused the DEP to withhold plaintiff's payment are all established. Moreover, the court's January 9, 2006 decision held that Markowitz, given his illegal conduct, could not invoke the doctrine of unclean hands as a defense. Plaintiff succeeds in making a prima facie showing in regard to the fraud claim and defendant fails to raise an issue of fact in that regard.

A defrauded party is entitled to recover out-of-pocket losses and consequential damages (Delcor Laboratories, Inc. v Cosmair, Inc., 169 AD2d 639, 640 [1st Dept 1991]). Recovery of consequential damages is limited to the sum necessary for restoration to the position occupied before commission of the fraud (Alpert v Shea Gould Climenko & Casey, 160 AD2d 67, 71 [1st Dept 1990]). As stated above, the character of plaintiff's damages is not yet ascertained.

Unjust enrichment - A plaintiff proves a cause of action for unjust enrichment by showing that it bestowed a benefit on the defendant, that the defendant obtained such benefit without adequately compensating the plaintiff, and that equity and good conscience require that defendant make restitution (Korff v Corbett, 18 AD3d 248, 251 [1st Dept 2005]). In this case, the benefit consisted of plaintiff approving the fraudulent applications, causing the DEP to pay defendant. The restitution that Markowitz owes plaintiff is the payment that Markowitz caused plaintiff to lose, while Markowitz received the benefit of plaintiff's work. Markowitz's motion to dismiss this cause of action is denied.

Inducing breach of fiduciary obligation - To recover on a cause of action for aiding and abetting a breach of fiduciary duty, plaintiff must show that an employee breached his fiduciary obligation, that Markowitz participated in the breach, and that plaintiff suffered damage as a result (see Kaufman v Cohen, 307 AD2d 113, 125 [1st Dept 2003]). The elements of this claim have been proven. That Markowitz's accomplice in the fraud, Senerchia, owed his employee a fiduciary duty, that Markowitz participated in the breach of that duty, and that plaintiff was injured is not in doubt. Markowitz's motion to dismiss this cause of action is denied.

Markowitz' motion to dismiss the claims against him is denied. Plaintiff's motion explicitly addresses fraud and indemnification, but not the unjust enrichment and fiduciary duty causes of action. Nonetheless, plaintiff has shown it is entitled to summary judgment on these claims. The question of damages remains. For that reason, plaintiff's motion for summary [*8]judgment is denied. In addition, whether plaintiff negligently contributed to the DEP's injury, in which case, plaintiff is not entitled to indemnification, is an issue of fact.

VI. Defendant Siegfried Kovacs

Plaintiff has one claim against Kovacs for indemnification, the remaining claims having been dismissed due to their respective statutes of limitations. Kovacs's affidavit states that he was a licensed master plumber in the TRP. He and another defendant, Marvin Sontag, were owners of defendant M&S Mechanical Contractors, Inc. (M&S). Unlike Kovacs, Sontag was not a licensed master plumber.

Kovacs and Sontag signed a document stating that Kovacs owned 51% of M&S, that his ownership was for licensing purposes only, that Kovacs had no voting rights in M&S, and that he was not entitled to share in the losses and profits of M&S (Kovacs notice of motion, Ex. FF). Orally, Sontag and Kovacs agreed that Kovacs would work part-time for M&S, that he would be paid $3 for each toilet that M&S replaced in the TRP, and 10% of any profits that M&S earned on any non-TRP work. Kovacs alleges that he was never a signatory on any M&S bank account, and that he had no knowledge of M&S finances or access to financial records. He had very little to do with the TRP. He only occasionally visited the replacement sites, and never had contact with building owners or managers. Kovacs's job was to review the PIPs. After reviewing them, he would sign them and return them to M&S.

In July 1997, the New York City Department of Buildings (DOB) notified Kovacs of an investigation and disciplinary hearing regarding his license and M&S's work. Kovacs says that the hearing was based on Sontag's wrongful hiring of subcontractors in the TRP, not on any false applications for rebates. The investigation resulted in Kovacs's license being suspended for six months and his paying a fine to the DOB. In late 1997, he resigned from M&S and severed all ties with Sontag and M&S.

In 2001, Sontag pleaded guilty to criminal charges stemming from his actions in the TRP. At his allocution, Sontag stated that he bribed plaintiff's employees, Senerchia and Rizzo, to approve applications for work that Sontag had not performed (Plaintiff's notice of motion, Ex. 15). Kovacs was never charged with any crimes.

Plaintiff alleges that M&S made fraudulent PIPs in regard to seven buildings and collected fraudulent rebates. The invoices that accompanied the PIPs bear what is purportedly Kovacs's signature. Kovacs says that his signature was forged on six of those. The seventh he allegedly signed in good faith in the belief that it was accurate. Kovacs maintains that he did not participate in the fraud and knew nothing of it.

Kovacs's affidavit does not eliminate the question of whether or not he was involved in the fraud. Letters to Kovacs from the DEP indicate that Kovacs and M&S were suspended from the TRP because of false toilet drop-off receipts (Plaintiff's opposition to Kovacs' motion, Ex. 12). This is evidence that Kovacs's suspension was not due only to M&S's wrongful hire of subcontractors, as Kovacs alleged.

There also exists evidence that Kovacs helped to disregard the rules of the TRP. DEP's representative testified that "if Kovacs was not presented as the licensed plumber owning 51% of M&S Mechanicals, they couldn't have participated" in the TRP (Plaintiff's notice of motion, Ex. 3, Liebold tr.,, at 99). As a master plumber, Kovacs's presence was necessary to M&S's participation in the TRP. Yet he states that he had very little to do with the actual replacements. Whether Kovacs knowingly participated in the fraud is an issue of fact. [*9]

VII. Defendant Joseph Collins

Collins was the licensed master plumber associated with Copperline Plumbing and Heating, Inc. Plaintiff submits copies of invoices from Copperline, by which illegal rebates were allegedly obtained. The invoices bear Collins's master plumber number. Collins alleges that the invoices were forged by someone who then collected the improper rebates, and that he did not collect any portion of them.

Without the involvement of a master plumber, a company could not participate in the TRP. As Collins was the master plumber for Copperline, there is an issue of fact regarding his participation in applying for improper rebates.

A federal investigator questioned Collins about the TRP. Collins told the investigator that he had spoken with Rizzo, plaintiff's employee implicated in the fraud, once or twice. The investigators examined Collins' phone records and determined that within a two-month period, Collins had phoned Rizzo 16 times. Collins pleaded guilty to one count of making a false statement in connection with a federal grand jury investigation.

Collins argues in favor of dismissal of all the claims against him based on the statute of limitations, however, he does not present a formal motion. For the reasons stated in the court's January 9, 2006 and July 14, 2005 decisions, the causes of action, except for indemnification, are untimely as against Collins. The statutes of limitations are not extended by CPLR 213-b. A crime victim may invoke CPLR 213-b to lengthen a statute of limitations, when the defendant has been convicted of a crime, the crime is the subject of the civil action, and the crime victim's injury resulted from that crime (CPLR 213-b). Here, Collins's crime of making a false statement to a government investigator did not injure plaintiff (see Boice v Burnett, 245 AD2d 980, 981-982 [3d Dept 1997]). Therefore, CPLR 213-b does not apply.

Upon the making of a formal motion to dismiss, all of the claims against Collins, except for indemnification, will be dismissed. Accordingly, Plaintiff's motion for summary judgment is denied.

VIII. Defendant Carl Termine

Termine, a licensed master plumber, owned Total Plumbing and Heating. Termine denies working on the four buildings for which illegal rebates were issued. He also says that he never received any monies for those projects. However, his name and company name are on the invoices. The initial applications indicate that he is the master plumber for those buildings.

Termine's motion to dismiss the claims against him is granted because of the statutes of limitations. The exception is the indemnification claim. Plaintiff's motion for summary judgment is denied.

IX. Defendant Mike Liebhard

Liebhard was president of T&M Plumbing Corp. (T&M). Defendant Andrew D'Aprice was a licensed master plumber who was also a T&M principal. D'Aprice managed the TRP. Defendant Yitzack Itzkowitz was T&M's general office manager. Itzkowitz and D'Aprice pleaded guilty to criminal charges in connection with the TRP.

Liebhard's job was to buy supplies and made sure they were delivered to the work sites. He also had the task of finding new customers. Liebhard alleges that he received no illegal rebates. He points out that no documents involving applications or rebates bear his name. No criminal charges were brought against him.

The only evidence against Liebhard is that he worked at T&M. That is not enough to [*10]raise an issue of fact regarding his involvement in the fraud. Therefore, Liebhard's motion for summary judgment dismissing all the claims against him is granted. Plaintiff's motion is denied.

X. Defendants Albert Pullini and Americo Pullini

Albert Pullini is father to Americo and Edward Pullini. Albert Pullini, a licensed master plumber, owned Pullini Water Main and Sewer Company (Pullini Water). Americo is also a licensed master plumber. Edward Pullini, who was not a plumber, worked for his father's company. Plaintiff alleges that Pullini Water caused illegal rebates to issue.

Edward pleaded guilty to bribery in connection with a federally funded program and to making a false statement to a federal investigator. At his allocution, he said that he paid plaintiff's employee, Rizzo, to expedite the processing of Pullini Water's paperwork and that he submitted applications falsely claiming that work had been done.

Americo Pullini testified that he stopped working for his father's company in 1990 (Pullini notice of motion, Ex. E, Americo Pullini tr., at 9). The TRP did not start until 1993.

Albert Pullini testified that he did not know that Edward was involved in the TRP (Pullini notice of motion, Ex. F, Pullini tr., at 36). Albert did not do any TRP business (id. at 35). Edward set up his own operations and maintained his own separate Pullini Water account (id. at 21). Pullini Water filed one tax return (id. at 43).

Against Americo, no evidence exists that he participated in obtaining illegal rebates or that he was even connected to Pullini Water, while the TRP was ongoing. Regarding his father, however, since Pullini Water could not have obtained illegal rebates without a master plumber, and Albert is such a one, there is a question of fact regarding his involvement. The Pullinis' motion to dismiss the complaint is granted as to Americo. The motion is granted as to Albert because of statutes of limitations on the claims, except for the indemnification claim. Plaintiff's motion is denied.

XI. Conclusion

Based on the foregoing, it is

ORDERED that plaintiff's motion for summary judgment (motion sequence number 016) is denied; and it is further

ORDERED that defendant Mike Liebhard's motion for summary judgment dismissing the complaint (motion sequence number 013) as against himself is granted, and the complaint is hereby severed and dismissed as against defendant, and the Clerk is ordered to enter judgment accordingly; and it is further

ORDERED that defendants Albert Pullini's and Americo Pullini's motion for summary judgment dismissing the complaint (motion sequence number 015 )

1) is granted to the extent that the complaint is dismissed as against Americo Pullini, and the complaint is hereby severed and dismissed as against defendant, and the Clerk is ordered to enter judgment accordingly, and

2) is granted to the extent that the first, second, fourth, fifth, and sixth causes of action are dismissed as against Albert Pullini, and is denied as to the third cause of action for indemnification, which is not dismissed; and it is further

ORDERED that defendant Carl Termine's motion for summary judgment dismissing the complaint (motion sequence number 018) as against himself is granted as to the first, second, fourth, fifth, and sixth causes of action, and is denied as to the third cause of action for indemnification, which is not dismissed; and it is further [*11]

ORDERED that the motions of these defendants for summary judgment dismissing the complaint as against themselves is denied: Abraham Markowitz a/k/a Avi Markowitz a/k/a Abraham Lebovice (motion sequence number 014) and Siegfried Kovacs (motion sequence number 017); and it is further

ORDERED that the remainder of the action shall continue.

Dated:September 21, 2006

ENTER:

_____________________

J.S.C.