The following papers numbered 1 to 15 read on this motion for an order pursuant to CPLR §3212 granting summary judgment in favor of defendant, Christopher V. Papa R.A., A.I.A, dismissing the cross-claims and/or third-party claims made herein against same.

PAPERS

NUMBERED

Notice of Motion - Affidavits-Exhibits..................................1 - 4

Affirmation in Opposition......................................................5-9

Affirmation- Memorandum of Law.......................................10 - 12

Affirmation in Reply..............................................................13 - 15

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Defendant, Christopher V. Papa R.A., A.I.A ("Papa") moves for an Order pursuant to CPLR §3212 granting summary judgment in favor of Papa dismissing the cross-claims and/or third-party claims.^[FN1]

On or about September 2, 2012, Plaintiff commenced the within action asserting claims of legal malpractice, architectural malpractice, fraudulent inducement, contract recision and negligence.

Papa was retained by Paul Sklar ("Sklar") by written agreements dated March 15, 2006 and August 9, 2006, to provide a zoning analysis of the subject real property to get Department of Building approval for the construction of a new building on an adjacent lot while the existing building remained. Papa completed his services but Whitestone 8888 Corp opted not to construct the new building. Papa contends that its services were completed at this point.

Plaintiff took title to the property from Whitestone in January of 2009, retaining defendant Mitchell, & Incantalupo ("Mitchell") and Wax Ferraro Architect, PC ("Ferraro") to assist with the purchase.

Plaintiff ultimately brought the within action for breach of contract and negligence as a result of Plaintiff's inability to secure approval for new construction. On or about November 23, 2011, Plaintiff executed a Stipulation of Discontinuance in favor of Christopher V. Papa. However, prior to the discontinuance defendant Mitchell and Ferraro asserted cross-claims against Papa for contribution and indemnification.

To meet its burden for summary judgment movant must foreclose any genuine issue of material fact showing it is entitled to a judgment as a matter of law. (Bush v. St. Clare's Hosp., 82 N.Y 2d 738 [1993] (reasoning that if a question of fact exists the court is precluded from granting a summary judgment motion); Winegrad v. New York Univ. Med. Center, 64 N.Y 2d 851 [1985] Zuckerman v. New York, 49 NY2d 557 [1980].) To do so "the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate all material issues of fact from the case." (Winegrad v. New York Univ. Med. Center, 64 N.Y 2d 851 [1985].) If the proponent succeeds, then the burden shifts to the opposing party, who must then demonstrate through admissible evidence that there are material issues of fact sufficient to defeat the motion for summary judgment. (See Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].) Further, a court will not deny a summary judgment motion pursuant to CPLR §3212(f) on the "mere hope" discovery will bring forth favorable evidence. (See Zarzona v. City of New York, 208 AD2d 920 [2nd Dept. 1994] Sarver v. Martyn, 161 AD2d 623 [2nd Dept. 1990].) To defeat a summary judgment motion the non-movant must identify the specific evidence that it believes will create an issue of material fact.(See Zuckerman v. City of New York, 49 NY2d 557 [1980].) Here, Papa properly met its prima facie burden as to defendants Mitchell and Ferraro.

Initially, Papa contends that Mitchell and Ferraro may not maintain an action for contribution because the Plaintiff seeks to recover only economic losses. Pursuant to CPLR 1401, "two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought." Contribution is unavailable for claims seeking recovery for purely economic loss resulting from the breach of contractual obligations. (Capstone Enterprises of Port Chester, Inc. v. Board of Educ. Irvington Union Free Capstone Enterprises of Port Chester, Inc. v. Board of Educ. Irvington Union Free [*3]School Dist., 106 AD3d 856 [2nd Dept 2013] citing Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 NY2d 382 [1987] Galvin Brothers, Inc. v. Town of Babylon, 91 AD3d 715 [2nd Dept 2012].) In the within action, Plaintiff is seeking the purely economic relief of recovery of the purchase price of the Property. Accordingly, a claim for contribution from Papa must be dismissed.

A right to indemnification can only arise where there is a written contract providing for indemnification or whether indemnification is implied under common law. (Facilities Dev. Corp. v Miletta, 180 AD2d 97 [3rd Dept 1992] Rosado v Proctor & Schwartz, 66 NY2d 21 [1985] citing Prosser and Keeton, Torts § 51, at 341 [5th ed].) It is undisputed that there is no contractual relationship between Mitchell or Ferraro. Furthermore, Mitchell and Ferraro's liability is based upon the their alleged breach of obligations owed to the Plaintiff, rather than upon vicarious liability attributed solely to the fault of Papa, therefore Mitchell and Ferraro do not have a legally viable claim for implied indemnification against Papa. (Mount Vernon Fire Ins. Co. v Mott, 179 AD2d 626 [2nd Dept 1992] Dormitory Auth. of State of NY v Caudill Rowlett Scott, 160 AD2d 179 [2nd Dept 1990].) Accordingly, as Mitchell and Ferraro have no contractual relationship with Papa and each of the defendants were retained separately from Papa, there can be no claim for indemnification as against Papa.

Defendant Ferraro fails to oppose the within motion. Defendant Mitchell, in opposition, fails to raise an issue of fact for trial. Specifically, Mitchell contends that a letter from YDRA to Papa in February of 2009, requesting any paperwork concerning the proposed construction, raises an issue of fact for trial. However, Papa was retained by Whitestone and not the Plaintiff. Therefore, Mitchell's reliance on Ossining Union Free School Dist. v Anderson LaRocca Anderson, is misplaced. (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417 [1989].) Furthermore, Mitchell contends that discovery is not yet complete. However, a party may not "rely upon mere hope that evidence sufficient to defeat summary judgment may be uncovered during the discovery process." (Piltser v. Donna Lee Management Corp., 29 AD3d 973 [2nd Dept 2006] Baron v. Newman, 300 AD2d 267 [2nd Dept 2002].) Mitchell failed to identify what information they hoped to discover at the depositions, or from other discovery, that would defeat the within motion.

For the reasons set forth above, Papa's motion for summary judgment is granted and all cross-claims and/or third party claims against Papa are dismissed.

Dated:April 3, 2014___________________________

Bernice D. Siegal, J. S. C.