Tanger v Ferrer, 2011 NY Slip Op 01954 [82 AD3d 564]

March 17, 2011

Appellate Division, First Department

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Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Richard E. Lerner of counsel), for appellants.

Kramon & Graham, P.A., Baltimore, Maryland (James P. Ulwick of the Maryland bar, admitted pro hac vice, of counsel), for respondent.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered June 1, 2010, which, to the extent appealed from, as limited by the briefs, granted third-party defendant’s motion to dismiss the third-party complaint asserting a claim for contribution, unanimously affirmed, with costs.

In this legal malpractice action, plaintiff alleges that defendant Alfred Ferrer III, when serving as a lawyer for him and his wife, negligently prepared three settlement tenders. Ferrer was employed by third-party defendant DLA Piper US LLP, formerly known as Piper & Marbury LLP, when he prepared the first two tenders, and by defendant Eaton & Van Winkle, LLP (EV) when he prepared the third tender. Ferrer and EV instituted a third-party action for, among other things, contribution against DLA Piper. DLA Piper moved to dismiss the third-party complaint against it, arguing, in pertinent part, that EV, as a successive tortfeasor, had no right to contribution from it, as prior tortfeasor. We agree.

Where, as here, “the injuries caused by the original and successive tortfeasor are capable [*2] of being separated from or divided between one another, the successive tortfeasor, being liable only for the injuries that tortfeasor caused, has no right of contribution from the original tortfeasor” ( Cohen v New York City Health & Hosps. Corp. , 293 AD2d 702, 703 [2002]). Concur—Andrias, J.P., Saxe, Friedman, Moskowitz and Richter, JJ. [Prior Case History: 2010 NY Slip Op 31355(U).].