CPLR 4401: Dismissal of Cross-Claim for Contribution Unwarranted Despite Cross-Claimant's Opening Statement Exculpating Codefendants

St. John's Law Review Volume 55, Spring 1981, Number 3 Article 11 CPLR 4401: Dismissal of Cross-Claim for Contribution Unwarranted Despite CrossClaimant's Opening Statement Exculpating Codefendants Donald Chase Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Chase, Donald (1981) "CPLR 4401: Dismissal of Cross-Claim for Contribution Unwarranted Despite Cross-Claimant's Opening Statement Exculpating Codefendants," St. John's Law Review: Vol. 55 : No. 3 , Article 11. Available at: https://scholarship.law.stjohns.edu/lawreview/vol55/iss3/11 This Recent Development in New York Law is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . 1981] SURVEY OF NEW YORK PRACTICE clusive recovery feature of the worker's compensation statute.123 Also left unresolved by the Feldman court is the possibility of successive contribution claims by the defendant. The potential for harassment of the third-party defendant in this situation has been noted where a small incremental amount in excess of his apportioned share is loaned to the defendant. 124 Moreover, while a thirdparty provided the loan proceeds in Feldman, the court's rationale would be applicable equally to cases in which the funds came directly from the plaintiff. In either case, the incentives for collusion are great where the named tortfeasor is insolvent. Consequently, the effect, if not the spirit of the Klinger rule, will be diminished substantially by permitting a Feldman-type agreement. Ellen R. Dunkin ARTICLE 44-TRnLL MOTIONS CPLR 4401: Dismissal of cross-claim for contribution unwarranted despite cross-claimant's opening statement exculpating codefendants A motion to dismiss a cause of action based on admissions in the opening statements of counsel which effectively preclude recovery may be made pursuant to CPLR 4401.125 Although the statute 12 See note 122 supra. See CPLR 5230, commentary at 37-38 (McKinney Supp. 1980-1981). Successive claims would occur if the court allowed for assertion of the contribution claim through a "bucket brigade" approach. Id. at 37. This system of recovery applies where a defendant already has paid his exact share of the judgment. Each additional dollar he pays is one over and above his share and therefore collectible from the third-party defendant. Once the defendant collects that dollar, he can pay the plaintiff and thus, has another claim against the third-party defendant. Id. Rather than require the defendant to assert one contribution claim at a time, another commentator has postulated that the defendant may be entitled to receive the full amount owing once he pays just one dollar. See WK&M I 1402.01a, at 14-94. 124 15 CPLR 4401 (1963) provides: Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions. Although not included expressly, dismissal on the basis of admissions in a counsel's opening statement is within the purview of the statute. SEcoND RE. at 306; see CPLR 4401, commentary at 212 (1963). The practice of using the motion in this fashion is well established in New York. See, e.g., Hoffman House v. Foote, 172 N.Y. 348, 356, 65 N.E. 169, 171 (1902); Schaefer v. Karl, 43 App. Div. 2d 747, 747, 350 N.Y.S.2d 728, 729 (2d Dep't 1973); Denenfeld v. Baumann, 40 App. Div. 502, 503, 58 N.Y.S. 110, 110 (1st Dep't 1899). Indeed, ST. JOHN'S LAW REVIEW [Vol. 55:552 typically has been used by defendants to obtain dismissal of the plaintiff's claim,12 the broad language of the statute appears to contemplate that in multiparty litigation an admission in the opening remarks of defense counsel will support dismissal of a crossclaim as well. 127 Where dismissal of a cross-claim is sought, however, particularly a Dole cross-claim for contribution, 28 consideranotwithstanding that a motion to dismiss for failure to state a cause of action falls within the ambit of CPLR 3211(a)(7), when the motion is predicated on admissions made by counsel, CPLR 4401 affords the proper procedural vehicle for seeking dismissal. See 4 WK&M 4016.14. A dismissal based on counsel's opening statement may be predicated on any of three theories: insufficient facts to state a cause of action, admissions in the answer sufficient to negate as a matter of law an element necessary to the cause of action, or admissions or statements of fact in the opening statement which irrebuttably destroy the case. Gilbert v. Rothschild, 280 N.Y. 66, 70, 19 N.E.2d 785, 786 (1939); Hoffman House v. Foote, 172 N.Y. 348, 350, 65 N.E. 169, 169 (1902); 4 WK&M 4016.14. In order to justify dismissal, the admissions should be of a kind "formally intended to be part of the pleadings," Martin Fireproofing Corp. v. Maryland Cas. Co., 45 Misc. 2d 354, 359, 257 N.Y.S.2d 100, 106 (Sup. Ct. Erie County 1965), afl'd, 26 App. Div. 2d 910, 275 N.Y.S.2d 375 (4th Dep't 1966) (citing Lloyd v. R.S.M. Corp., 251 N.Y. 318, 320, 167 N.E. 456, 456 (1929)), and not evidentiary in nature such as inadvertent or inconclusive factual admissions. See Gracie Square Realty Corp. v. Choice Realty Corp., 305 N.Y. 271, 278, 113 N.E.2d 416, 419 (1953); Lefler v. Clark, 247 App. Div. 402, 403-04, 287 N.Y.S. 476, 479 (1st Dep't 1936), SIEGEL § 402; 4 WK&M 1 4016.15. It is clear that the mere omission from the opening statement of elements necessary to establish a prima facie case is not ordinarily grounds for dismissal. See Rivera v. Board of Educ., 11 App. Div. 2d 7, 8-9, 201 N.Y.S.2d 372, 374-75 (1st Dep't 1960); Goodman v. Brooklyn Hebrew Orphan Asylum, 178 App. Div. 682, 685, 165 N.Y.S. 949, 951 (2d Dep't 1917). Dismissal is proper only where counsel "deliberately and intentionally states or admits some fact that, in any view of the case, is fatal to the action." Hoffman House v. Foote, 172 N.Y. 348, 351, 65 N.E. 169, 169 (1902). 128 See, e.g., Gilbert v. Rothschild, 280 N.Y. 66, 70, 19 N.E.2d 785, 786 (1939); Hoffman House v. Foote, 172 N.Y. 348, 350-51, 65 N.E. 169, 169 (1902); Runkel v. City of New York, 282 App. Div. 173, 179, 123 N.Y.S.2d 485, 491 (2d Dep't 1953) (per curiam). 127 CPLR 4401 is not limited by its language to motions to dismiss the main action. Motions to dismiss counterclaims, cross-claims, interpleader claims, and third-party claims may all be cognizable under this provision. See SEcoND REP. at 306-08; 4 WK&M 1114016.14, 4401.01. Nevertheless, no case has been found which applies CPLR 4401 to a Dole crossclaim for contribution. But cf. Pine v. Solow, 69 App. Div. 2d 760, 760-61, 415 N.Y.S.2d 3, 5 (1st Dep't 1979) (admission in pr (...truncated)