This is an action arising out of a multi-million-dollar renovation project involving three elementary schools, a middle school and a high school in the Rondout Valley Central School District in Ulster County. The project began in the late 1990's and proceeded in various phases to completion in 2001. Encompassed in the project were the replacement of heating, ventilation and air conditioning (HVAC) systems, installation of co-generators,^[FN1] major renovations to track and field facilities and the emergency repair of a school building damaged by roof leakage and subsequent toxic mold contamination.

Plaintiff Westbank Contracting, Inc. (Westbank) commenced this action in 2002 to recover money allegedly owed to it for services performed on the project. Westbank brought suit not only against Rondout Valley Central School District (the School District), but also against the architectural firm hired by the School District, The Sear-Brown Group (Sear-Brown). These two [*2]defendants then filed cross-claims against each other.

The original action was settled by the payment of approximately one hundred ninety thousand dollars ($190,000.00) by the School District to Westbank. Westbank discontinued its lawsuit against both the School District and Sear-Brown. What remained were the two cross-claims.

The School District amended its verified answer with cross-claims to include defendant Stantec Consulting Services, Inc. (Stantec), the successor in interest to Sear-Brown, as an additional party defendant. The School District also added various causes of action based apparently upon information obtained during the discovery phase of the initial proceeding. Permission to amend the pleadings had been granted by Decision and Order of Supreme Court, Ulster County (Kavanagh, J.) dated February 24, 2006.

Defendants Sear-Brown and Stantec then brought a third-party action seeking indemnification and contribution against one individual and five corporate entities. These third-party defendants are: Coneco, a defunct Massachusetts company that had done the design work for the HVAC improvements and the energy upgrades for the School District; Boston Edison Technology Group, parent company of Coneco; Boston Edison, parent company to Boston Edison Technology Group; Abacus Engineered Systems, Inc. (Abacus), the construction management company on the project; Christa Construction, a subcontractor and consultant brought in by Abacus for the project; and James B. Slavetskas, P.E., who had been Vice President of Coneco and was later Vice President of Abacus. Only defendant Slavetskas has interposed an answer; the remaining defendants have filed pre-answer motions to dismiss the third-party complaint under CPLR 3211(a)(7). Defendant Slavetskas has also moved to dismiss.^[FN2]

On a motion to dismiss a complaint for failure to state a cause of action, the facts alleged in the complaint must be deemed true, and all reasonable inferences favorable to the plaintiff must be drawn (International Oil Field Supply Services Corp. v Fadeyi, 35 AD3d 372, 375 [2d Dept, 2006], citing Leon v Martinez, 84 NY2d 83, 87- 88 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]). In the present case, the third-party complaint contains no substantive factual allegations at all. The pleading consists of seven paragraphs, the first five of which make [*3]basic jurisdictional assertions. Paragraph six simply states, in pertinent part, "If the codefendant cross-claimant Roundout [sic] Valley Central School District were [sic] caused to sustain damages . . . said damages were sustained by reason of the [tortious conduct and/or contract breaches] of the third party defendants . . . ." Paragraph seven in essence claims a right to indemnification and contribution from the third party defendants. In short, the third-party complaint does not allege any particular act or omission on the part of any of the third-party defendants that could support a legally cognizable theory of liability. On its face the pleading fails to "be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action" (CPLR 3013).

This is not the end of the analysis, however. In opposition to a motion to dismiss, a party may submit supporting affidavits to shore up any factual defects in the complaint (R.H. Sanbar Projects, Inc. v Gruzen Partnership, 148 AD2d 316 [1st Dept 1989]; see also International Oil Field Supply Services Corp. v Fadeyi, supra). This derives from the principle that "the court's

attention should be focused on whether the plaintiff has a cause of action rather than on whether he has properly stated one" (Sanbar, supra, at 318). Here, counsel for Sear-Brown and Stantec has presented a 39-page affirmation with 26 exhibits in an effort to prove the existence of causes of action for indemnity and contribution against the third-party defendants. An exhaustive search of these submissions, however, yields little proof of the existence of any factual basis to support these derivative claims.

The right to indemnity arises from a contractual relationship, either express or implied, between the parties (McDermott v City of New York, 50 NY2d 211, 216 [1980] quoting McFall v Compagnie Maritime Belge [Lloyd Royal], S. A., 304 NY 314, 327- 328 [1952]). In the present case the record is devoid of evidence that the third-party defendants entered into any express contractual relationship with Sear-Brown by which they agreed to indemnify Sear-Brown for losses sustained or damages assessed in connection with the School District project that is the subject of this litigation. There is some proof in the deposition testimony of third-party defendant Slavetskas that Sear-Brown had acted as a consultant to Coneco on a prior "energy performance contract" with the School District, but that same witness unequivocally testified that this particular contract was unrelated to the current lawsuit.^[FN3] Moreover, there is nothing in the record to suggest that this prior relationship between Sear-Brown and Coneco contained any indemnity agreement.

The third-party plaintiffs also attempt to create a contractual right to indemnity by pointing out that the School District and Abacus had executed a standard form contract in 1999 in which the parties agreed to strike a boilerplate paragraph that included, among other items, the sentence, "The Construction Manager shall not be responsible for actions taken by the Architect." The third-party plaintiffs contend that this implies an intent on the part of the School District and Coneco that Coneco, as construction manager on the project, had accepted a duty to [*4]indemnify the School District for Sear-Brown's actions as architect. This assertion is directly contradicted, however, by the contractual language actually chosen by the parties as the substitute

for the boilerplate paragraph: "The [School District] shall retain an Architect whose services, duties and responsibilities are described in the actual agreement entered into between the [School District] and the Architect." The "actual agreement" entered into between the School District and Sear-Brown does not contain an indemnity agreement with Coneco. Thus, the very proof adduced by the third-party plaintiffs in support of their position actually undermines it: the carefully negotiated written agreements executed by the parties evince an intent that the Construction Manager [Coneco] would not be the indemnitor of the Architect [Sear-Brown].

In the absence of an express agreement of indemnity, there are still circumstances in which a court may, as a matter of equity, impose a quasi-contractual duty of indemnification. Such "implied indemnification," however, will only be found to exist where the imposition of damages against a particular party would result in the unjust enrichment of another or where the burden of liability for wrongful conduct more appropriately should be shifted to a more culpable party. "It is nothing short of simple fairness to recognize that [a] person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity'" (McDermott v City of New York, supra, at 317, quoting Restatement, Restitution, § 76). This principle does not apply to the present case.

The allegations of the cross-claim brought against Sear-Brown and Stantec by the School District are that Sear-Brown breached its contractual obligations to the School District, that its services as architect were substandard, that it overbilled the School District and that it defrauded the School District by its billing practices. In short, the School District seeks to hold Sear-Brown and Stantec responsible for their own acts and omissions, not for those of any other participants in the school renovation project. "[A] party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine [of implied indemnification]" (Dormitory Authority of the State of New York v Scott, 160 AD2d 179, 181 [1st Dept 1990], quoting Trustees of Columbia University v Mitchell/Giurgola Associates, 109 AD2d 449, 453 [1st Dept 1985]). Indemnity is thus not available to the third-party plaintiffs here, as the theory of liability asserted by the School District against Sear-Brown and Stantec is not one of vicarious liability for the conduct of any other entity but one of direct liability for the third-party plaintiffs' own conduct.

The third-party plaintiffs also allege that they are entitled to a claim for contribution under CPLR 1401. Under the terms of that provision, however, contribution is available only for cases involving "personal injury, injury to property or wrongful death." The gravamen of the claims brought against Sear-Brown and Stantec, however, is breach of contract. By the express language of the CPLR, then, contribution is unavailable here.

Sear-Brown and Stantec point out that the allegations of the cross-claim brought against them by the School District contain language sounding in tort. They thus conclude that they are entitled to contribution from the third-party defendants as putative joint tortfeasors. The standard to be applied, however, in assessing whether a cause of action is subject to contribution is not the theory of liability alleged in the pleadings but rather the measure of damages sought (Board of [*5]Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 28-29 [1987]). Here, the School District's prayer for relief in its cross-claim seeks the benefit of the School District's bargain contract damages rather than any measure of damages recoverable on a tort claim. Thus, for this additional reason, contribution is not available to the third-party plaintiffs in this action.

In fact, the instant case is "on all fours" with the Sargent, Webster case cited above. There, a school district sued the architect on a renovation project when a recently replaced roof began to leak. The architect then sought to implead the contractor by means of a third-party complaint seeking indemnification and contribution. In determining that the contractor's motion to dismiss had been properly granted, the Court of Appeals held that, since the school district sought only the benefit of its bargain in its suit against the architect, contribution was not available despite allegations of professional malpractice leveled against the architect by the school district in its complaint. Here, the cross-claim brought by the School District against Sear-Brown alleges negligence and fraud, though the ultimate relief sought is monetary compensation for expenses incurred over and above those bargained for in the contract. Thus, the Sargent, Webster analysis, applied to the instant case, yields the conclusion that contribution is also inapplicable here, as this case is, in all significant respects, a suit for breach of contract.

Since the third-party complaint is subject to dismissal, the issue arises of whether and under what circumstances may Sear-Brown and Stantec re-plead. In the opposition papers submitted by their counsel, the third-party plaintiffs specifically seek court permission to plead anew if their complaint is dismissed. A recent amendment to the CPLR renders this particular application academic.

CPLR 3211(e) formerly contained the following language:

Where a motion is made on the ground set forth in paragraph seven of subdivision (a), . . . if the opposing party desires leave to plead again in the event the motion is granted, he shall so state in his opposing papers and may set forth evidence that could properly be considered on a motion for summary judgment in support of a new pleading; leave to plead again shall not be granted unless the court is satisfied that the opposing party has good ground to support his cause of action or defense; the court may require the party seeking leave to plead again to submit evidence to justify the granting of such leave.

By L 2005, ch 616, effective January 1, 2006 this language was stricken in its entirety from 3211(e). According to the January 2005 Report of the Advisory Committee on Civil Practice, (cited in Siegel, Practice Review Number 170 [February, 2006] at p 1), this amendment was recommended because the former provision "cause[d] unnecessary litigation expense and complexity without any countervailing benefit, and invite[d] the inadvertent jeopardizing of a litigant's rights if counsel [was] unaware of the requirement to request leave to replead." As a result, court permission is now no longer necessary as a prerequisite to repleading upon 3211(a)(7) dismissal.^[FN4] [*6]

Additional grounds for dismissal are advanced by a number of the third-party defendants. Coneco asserts a lack of personal jurisdiction over it, insofar as it was a Massachusetts corporation that was dissolved in May of 2001. Mass. Gen. Laws Ann. Ch. 156B, § 102 provides that a corporation that has undergone dissolution "shall nevertheless be continued as a body corporate for three years after the time when its existence is terminated, for the purpose of prosecuting and defending suits by or against it . . ." (emphasis added). This third-party action was commenced in July of 2006, more than five years after Coneco's dissolution. Under the laws of the state of its incorporation, then, Coneco was no longer in existence for business or litigation purposes at that time. As a result, there is no personal jurisdiction over this non-existent entity.^[FN5]

Third-party defendants Boston Energy Technology Group (denominated in the caption as Boston Edison Technology Group) and Boston Edison also challenge personal jurisdiction. Their assertion is that they do not transact and have not transacted any business in New York and are therefore outside the ambit of CPLR 302(a)(1). In light of the dismissal of the third-party complaint, resolution of this factual issue is unnecessary, as the question is now moot (see generally, Matter of Hearst Corp v Clyne, 50 NY2d 707 [1980]). Of course, should Sear-Brown, Stantec or both choose to re-plead, the issue of personal jurisdiction over these two Massachusetts entities will undoubtedly need to be revisited. Peculiarly troubling in the papers submitted on the present motion, however, is the assertion by Sear-Brown and Stantec, made in their fifth affirmative defense in the amended answer to the cross-claim by the School District, that the School District had previously sued Coneco and Boston Edison and recovered "approximately 1.6 million dollars" from them. Nowhere in the voluminous record of this case do any of the parties mention in what court this prior lawsuit may have been filed, nor is there any information regarding whether the question of personal jurisdiction over Boston Edison or any of its subsidiaries was ever litigated or decided. If this question was indeed previously determined (or waived) there may be no need to revisit it (see, e.g., Infinite Public Relations, LLC v Rubinstein & Rubinstein, 13 Misc 3d 1243(A) [Sup Ct, NY Cty 2006] [Tolub, J.]). In any event, there is no need to determine the issue at this time.

Accordingly, it is

ORDERED that the motions of the third-party defendants to dismiss the third-party complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7) is granted.

This constitutes the Decision and Order of this Court. The original papers, including this Decision and Order, are being returned to counsel for third-party defendants Coneco, Boston Edison Technology Group, Inc. and Boston Edison. The signing of this Decision and Order shall not constitute entry of filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notices of entry. [*7]

Dated:Troy, New York

January 11, 2007/s/ George B. Ceresia, Jr.

George B. Ceresia, Jr.

Supreme Court Justice