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PAUL A. ESTEVA et al., Plaintiffs, v. KEVIN J. NASH, ESQ., et al., Defendants. KEVIN J. NASH, ESQ., et al., Third-Party Plaintiffs-Appellants,

As we have previously held, "A party sued solely for its own alleged wrongdoing, rather than on a theory of vicarious liability, cannot assert a claim for common law indemnification" ( Mathis v Central Park Conservancy, 251 AD2d 171, 172). Here, the complaint did not propound any theory that defendants were vicariously liable to plaintiffs by dint of third-party defendant Fundex's actions. As a result, defendants are not entitled to the common-law indemnification they seek in the third-party action ( see Bleecker St. Health Beauty Aids, Inc. v Granite State Ins. Co., 38 AD3d 231, 233).

Furthermore, the court properly dismissed the contribution claim against Fundex for aiding and abetting a breach of fiduciary duty, and properly denied defendants' cross motion for leave to amend their third-party complaint. Indeed, neither the original third-party complaint nor the proposed amended version alleges any facts sufficient to suggest that Fundex provided substantial assistance to plaintiffs in their alleged breach of fiduciary duty. The aiding-and-abetting claim must thus fail ( see Global Mins. Metals Corp. v Holme, 35 AD3d 93, 101, lv denied 8 NY3d 804).

[ See 2007 NY Slip Op 30584(U).]

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ESTEVA v. NASH
(Oct 30, 2008)