Schauer v. Joyce

Mikoll, J. (dissenting).

I respectfully dissent. In my view, the order of Special Term and the judgment entered thereon should be reversed and the complaint reinstated. The thrust of the third-party complaint is that injury allegedly sustained by plaintiff Schauer (i.e., loss of past and future alimony and support and payment of legal fees) was contributed to, in whole or in part, by the negligence of attorney Gent in failing to initiate “instant action” once having been retained by Schauer. CPLR 1401 et seq., representing the codification of the landmark decision of Dole v Dow Chem. Co. (30 NY2d 143), permits contribution between two or more persons who may be liable for damages for the same personal injury (McMahon v Butler, 73 AD2d 197, 198; Lippes v Atlantic Bank of N. Y., 69 AD2d 127, 136; Taft v Shaffer Trucking, 52 AD2d 255, app dsmd 42 NY2d 974). Such contribution claims are not limited to joint tort-feasors, but include “concurrent”, “successive and independent”, “alternative” and “intentional” tort-feasors as well (McMahon v Butler, supra). A cause of action sounding in contribution is set out in attorney Joyce’s third-party complaint. Under Dole v Dow Chem. Co. (supra), and its subsequent codification, it is not necessary to allege that the third-party defendant owed a duty in negligence to the third-party plaintiff. It is enough that both attorneys may be liable to Schauer for her loss of alimony and support payments and for the payment of new or increased legal fees as a result of the negligent handling of her matrimonial action.