This action arises out of the construction of a Stop and Shop Supermarket in a shopping center owned by defendant/third-party plaintiff Inland Western Coram Plaza, LLC (Inland). In 2003, Inland's predecessor, Starwood Ceruzzi, LLC (Starwood) contracted with third-party defendant, Carter & Burgess, LLC (C & B), to provide architectural and engineering services for the project (Exhibit "F"). In 2004, Starwood contracted with third-party defendant B.R. Fries and Associates, LLC (Fries) to actually construct the project. Starting around November 1, 2005, a quantity of sprayed-on fire resistant material (SFRM) fell from the underside of the roof to the floor. A second failure occurred in April, 2006 and a third in April, 2007.

In late December, 2010, plaintiff commenced this action against Inland to recover the cost of repairing the SFRM installation (Exhibit "A"). On March 25, 2011, Inland commenced a third-party action against both C & B and Fries, contending C & B failed to properly design the roof deck and support structure and that the SFRM failed due to material failures and defects in the work performed by Fries (Exhibit "B"). By Notice of Motion dated July 18, 2011, and returnable November 15, 2011, C & B moved to dismiss the third-party complaint. Thereafter, by Order (Lynch, J.) dated January 12, 2012 and amended on February 15, 2012, the Court dismissed the third-party complaint against C & B, with prejudice (Exhibits "C" and "E").

In the meantime, in an Answer to the Third-Party Complaint dated October 7, 2011, Fries asserted three cross-claims against C & B for (1) common law indemnification; (2) contribution; and (3) negligence/professional malpractice. Before the Court is C & B's motion to dismiss each of Fries' cross claims. Fries has opposed the motion.

In this procedural context, the pleadings are liberally construed in favor of the non-moving party, allegations in the third-party complaint are accepted as true and Fries is accorded the benefit of every possible inference (see EBI, Inc. v. Goldman, Sacks & Co., 5 NY3d 11, 19).

A party is entitled to implied indemnification where through no fault of its own it is held vicariously liable for the negligence of another (see Garrett v. Holiday Inns, 58 NY2d 253, 263-264; County of Westchester v. Wilton Beket Assocs., 102 AD2d 34, 47-48, aff'd 66 NY2d 642; Finch, Pruyn & Company, Inc. v. M. Wilson Control Services, Inc., 239 AD2d 814; State of New York Facilities Dev. Corp. v. Kellman & McKinnell, Russo & Sander, 121 AD2d 805, 806;

Board of Educ. of City of NY v. Mars Assoc., 133 AD2d 800). Since Inland's claim against Fries is based upon Fries' own defective work, and no claim is [*2]asserted that Fries is vicariously liable for the negligence of C & B, the Court agrees with C & B that Fries' common law indemnification cross-claim fails as a matter of law (cf. North Colonie Central School District v. MacFarland Const. Co., Inc. 60 AD2d 685 [potential liability of third-party plaintiff for the additional wrongdoing of a third-party defendant]).

Next, C & B maintains that since the claims of plaintiff and Inland are for economic loss, Fries' cross claim for contribution must be dismissed. In Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley (71 NY2d 21), the Court of Appeals determined that contribution under CPLR Article 14 is not available "between two parties whose potential liability to a third party is for economic loss resulting only from a breach of contract" (Id at 24). In so holding, the Court explained " that purely economic loss resulting from a breach of contract does not constitute injury to property' within the meaning of New York's contribution statute..." (Id at 26). Here, as in Sargent, the plaintiff and third-party plaintiff are seeking pecuniary damages for repairs made to correct the SFRM. That plaintiff is also seeking to recover for damage to certain stoves and the cost of security necessitated by the SFRM failures does not transform this case into a tort claim. These consequential damage items fall within the embrace of economic damages arising out of a breach of contract. Accordingly, Fries' second cross-claim for contribution is dismissed (see Westbank Contr., Inc. v. Rondout Val. Cent. School Dist. 46 AD3d 1187, 1190).

Lastly, C & B contends that Fries' third cross claim for "negligence/

professional malpractice" is both time barred and fails for lack of privity between the entities. Notably, with respect to the Statute of Limitations argument, C & B fails to mention in its moving papers a "Tolling Agreement" signed by Inland, C & B and Fries on April 13, 2009 (see Exhibit "B" annexed to Kuehn Affirmation). According to the "Tolling Agreement", in which Inland agreed to discontinue a pending Federal Court action between the parties, the deadline for Inland to recommence an action was tolled through October 11, 2011. If timely recommenced, the action would be treated as having been commenced on October 15, 2008, with the parties reserving all rights and defenses. Here, Inland commenced the third-party action on March 28, 2011, while Fries asserted its cross claim on October 7, 2011.

Accepting that Fries benefits from the "tolling agreement" as having filed its claim effective October 15, 2008, the question remains whether the claim is barred by the three year statute of limitations that applies (CPLR 214[6]). Here, C & B maintains "the Project was completed and the S & S opened for business [*3]sometime in late 2004/early 2005 and that any claim for professional malpractice/ negligence...accrued at that time" (See C & B Memorandum of Law, p. 16; Winikow affidavit at paragraph 10). This contention mirrors the store's opening day asserted by Stop & Shop in the underlying, unverified complaint (Exhibit "A" at paragraph 16). "A claim for professional malpractice against an engineer or architect accrues upon the completion of performance under the contract and the consequent termination of the parties professional relationship" (Town of Wawarsing v. Camp, Dresser & McKee, Inc., 49 AD3d 1100, 1101-1102). "[W]e look to the parties' intent as embodied in their agreement to determine when their professional relationship ended" (Id at 1102; see also, City of Binghamton v. Hauk Engineering, P.C., 85 AD3d 1417, 1419).

Here, C & B has the burden of demonstrating through prima facie proof the viability of its Statute of Limitations defense, i.e. the actual accrual date. The Court agrees with Fries that C & B's proof is inadequate. While the store may have opened by early 2005, whether C & B had completed performance under its contract with Starwood remains unknown on the record presented. In its contract with Starwood, C & B agreed to provide "the design and engineering of a new Super Stop & Shop of approximately 66,000 square feet, a turnkey' project" (Exhibit "F", p. 3). In addition to preparing the plans and specification, C & B also agreed to provide a contract administrator (Id p. 5). By its terms, the contract called for additional services beyond the scope of "Basic Services" as agreed by the parties (Id, p. 7). The difficulty here is that C & B fails to address when its services provided under the contract actually ended.

Alternatively, C & B maintains Fries' negligence/malpractice claim fails because there is no privity of contract, or the functional equivalent of privity between them. It is undisputed that no actual contract existed between these two parties. As such, a viable tort claim could only be established if the bond between the parties was so close as to be the functional equivalent of privity (see Ossinning Union Free School Dist. v. Anderson LaRocca Anderson, 73 NY2d 417, 424; McNar Indus v. Feibes & Schmidt Architects, 245 AD2d 993, lv den 91 NY2d912; Palace Electrical Contractors, Inc. v. William Floyd Union Free School Dist., 60 AD3d 921).

Essentially, Fries maintains that its reliance upon C & B's design plan in bidding the contract and directions from C & B in completing the project establish the necessary privity relationship. Even accepting Fries' contentions as to C & B's conduct on the project, the allegations do not establish a relationship so close as to approach contractual privity for there is no showing that C & B was doing [*4]anything but providing the architectural and contract administration services required under its contract with Starwood (see McNar Industries, Inc. v. Feiber & Schmidt Architects, supra; Palace Electrical Contractors, supra.) Accordingly, this cross claim must be dismissed.

Given the above, C & B's motion to dismiss Fries' three cross claims is granted, and the cross claims are dismissed, without costs.

This memorandum represents the Decision and Order of this Court. The original Decision and Order is being mailed to the attorney for third-party defendant, Carter & Burgess, Inc. The original papers are being sent to the AlbanyCounty Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

DATED:April 10 , 2013

Albany, New York

________________________________________

Hon. Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Notice of Motion returnable January 14, 2013, with Memorandum of Law dated

December 4, 2012; Affirmation of Scott K. Winikow, Esq. dated December 4,

2013 with Exhibits "A" - "G";

2.Affirmation in Opposition of David Kuehn, Esq. filed January 29, 2013, with

Exhibits "A" - "B"; Affidavit in Opposition of Barry Fries dated January 21,

2013 with Exhibits "A" - "B"; Memorandum of Law dated January 22, 2013;

and

3.Reply Affirmation of Scott Winikow, Esq. dated February 11, 2013 with Exhibits

"A" - "C"; Reply Memorandum of Law dated February 11, 2013.