Kiernan Trebach attorneys Lori Graybow and Maria Scalici have seized on a critical error by counsel for a third-party defendant to defeat a motion to dismiss the third-party action pending in Supreme Court, Queens County.
KT represented a “gentlemen’s club” where the plaintiff made the acquaintance of two women with whom he left after all had been served while all were visibly intoxicated. One of the women was driving the vehicle, which was owned by plaintiff’s employer, while the plaintiff and the other woman were passengers. The vehicle was involved in a single-car accident and the plaintiff sustained serious injuries. The driver was arrested and found to have a blood alcohol level of 0.22. The complaint against alleges common law negligence and violation of General Obligations Law §11-101 (New York’s dram statute).
On behalf of our client, we commenced a third party action against the driver and plaintiff’s employer (the owner of the vehicle) asserting causes of action for common law indemnification and contribution based on the third-party defendants’ role in the accident. The third-party defendants failed to timely appear and we move for a default judgment. Several days thereafter, the third-party defendants filed an answer, which we accepted and withdrew the motion for default judgment.
The third-party defendants then moved to dismiss the third-party complaint alleging that, subsequent to both the filing of the third-party action and the motion for default judgment, they settled claims against them by the plaintiff and had been released by the plaintiff. The third-party defendants asserted that under New York law, our client’s claims for contribution and common law indemnification were barred. Ordinarily this would have been correct, but the circumstances of this case made it incorrect.
We argued that the motion to dismiss was procedurally deficient because it was filed after the third-party defendants had previously served a responsive pleading that did not raise the release as an affirmative defense, which waived the argument. On the merits that because our client was not a party to the release, it is indemnification claim against the third-party defendants was not barred.
The court agreed with the procedural arguments advanced by KT. Because the motion for default judgment was pending when the third-party defendants served their answer, the motion to dismiss was untimely. In any event, the motion to dismiss was submitted several months after service of their answer, which did not assert release as an affirmative defense. As such, the court agreed that the release defense was waived.
This critical error by counsel for the third-party defendants will keep these parties in a case from which they should have been dismissed.