Summary
In Elkman (supra) a landlord successfully sought indemnification from a neighboring fish retailer for odors that caused a tenant to sue the landlord for breach of warranty of habitability.
Summary of this case from Edge Management Consulting, Inc. v. BlankOpinion
January 6, 1998
Appeal from the Supreme Court, New York County (Alice Schlesinger, J.).
The claim for contribution was properly dismissed on the ground that the only damages alleged by the tenants are for economic loss resulting from a breach of contract (CPLR 1401; see, Board of Educ. v. Sargent, Webster, Crenshaw Folley, 71 N.Y.2d 21, 26), i.e., the warranty of habitability under Real Property Law § 235-b. However, the claim for indemnification was properly sustained, and the parties' respective motions for summary judgment thereon properly denied. Common-law indemnification is available to one who has committed no wrong but is held liable to the injured party because of some relationship with the tortfeasor "'or obligation imposed by law'" ( Glaser v. Fortunoff of Westbury Corp., 71 N.Y.2d 643, 646), such as that upon a landlord under Real Property Law § 235-b. Whether there were any structural defects in the construction or ventilation of the subject building that could have facilitated odors reaching the tenants' apartment, and, accordingly, whether the landlord's fault contributed to the alleged noxious condition of the apartment, are issues of fact left unresolved on this record. We have considered the parties' remaining arguments for affirmative relief and find them to be without merit.
Concur — Milonas J.P., Mazzarelli, Andrias and Colabella, JJ.