the claim. See Glaser v. Fortunoff, 71 N.Y.2d 643, 529 N.Y.S.2d 59, 61, 524 N.E.2d 413 (1988); Rosado v. Proctor & Schwartz, 66 N.Y.2d 21, 494 N.Y.S.2d 851, 853, 484 N.E.2d 1354 (1985).
The basic distinction between common law indemnification and contribution, first articulated in New York law in the seminal Court of Appeals case of Dole v. Dow Chemical Company, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972), and well-defined in numerous subsequent decisions, see, e.g., Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 300 N.E.2d 403, 347 N.Y.S.2d 22 (1973); D'Ambrosio v. City of New York, 55 N.Y.2d 454, 450 N.Y.S.2d 149, 435 N.E.2d 366 (1982), is that "a party who has itself participated to some degree in the wrongdoing cannot receive the benefit of the [common law indemnity] doctrine," but only of contribution. Trustees of Columbia Univ. v. Mitchell/Giurgola Assocs., 109 A.D.2d 449, 492 N.Y.S.2d 371, 375 (1st Dep't 1985). In other words, contribution involves joint tortfeasors whereas indemnification involves vicarious liability. See, e.g., D'Ambrosio, 450 N.Y.S.2d at 152-53.
Maintaining that the only exposure that led to its settlement of the underlying claims was strict liability, plaintiff contends that this "passive" liability is akin to vicarious liability and therefore permits a claim for common law indemnification. But there is nothing passive about the role of a distributor of a defective or hazardous product, and "any analogy" between strict liability and "instances in which liability is fixed on another without regard to any volitional act . . . is clearly flawed." Rosado v. Proctor & Schwartz, 66 N.Y.2d 21, 494 N.Y.S.2d 851, 854, 484 N.E.2d 1354 (1985); see also Chandler v. Northwest Engineering Co., 111 Misc. 2d 433, 444 N.Y.S.2d 398, 404-05 (Sup. Ct. Bronx Cty. 1981). Accordingly, the first cause of action must be dismissed.
While defendants raise a similar objection to plaintiff's third and fourth causes of action, which state claims for implied indemnification based on warranties of suitability and merchantability, here the liability is truly vicarious, i.e. implied by operation of law, and therefore a claim for indemnification can properly be pled. See Bellevue South Assocs. v. HRH Construction Corp., 78 N.Y.2d 282, 574 N.Y.S.2d 165, 579 N.E.2d 195 (1991). Put differently, whereas the strict liability of a distributor is partly the result of his own activity in purveying the offending product to the consumer, he plays no role in the manufacture of the product and in the warranties of merchantability and suitability that automatically arise from that process. While the distinction may be somewhat finespun, this Court, sitting in diversity, is bound by the holdings of Bellevue and, conversely, Rosado, that effectively make this distinction. Because defendants have not demonstrated that plaintiff will be unable to prove the elements of the implied warranty indemnity claim described in Bellevue, defendants' motion for judgment on the pleadings is denied with respect to plaintiff's third and fourth causes of action.
As for the second cause of action, defendants argue that plaintiff's claim for contractual indemnification is improper because the Complaint does not identify any express contract. However, plaintiff is not required to plead a contract claim with particularity, and may be able to prove the existence and legal force of a contract at a later stage of this case. Defendants' motion is therefore also denied with respect to plaintiff's second cause of action.
Finally, with respect to all the indemnification claims, defendants argue that if plaintiff paid its settlements more than six years before the commencement of the instant action, the six-year statute of limitations for indemnification, which begins running on the date of payment, bars any claim for recovery of those payments. See N.Y. C.P.L.R. § 213. However, plaintiff is not required to plead the dates of those settlements, and defendants admit that "discovery will be required to determine when settlements in underlying actions were effected." Memorandum in Support of Defendants' Motion for Judgment on the Pleadings at 14. Judgment on the pleadings on this ground is therefore unwarranted.
(2) Fraud Claims. Unlike its indemnification claims, plaintiff's fraud claims (the fifth and sixth causes of action) must be pleaded with particularity. See Fed. R. Civ. Pro. 9(b). Because these claims fail to allege any of the requisite "who, what, when, where, and why," the fifth and sixth causes of action must be dismissed. See, e.g., Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993).
(3) Leave to Amend. With respect to the first, fifth, and sixth causes of action that the Court has dismissed, plaintiff moves for leave to amend its Complaint. See Fed. R. Civ. P. 15.
Since plaintiff's claim for common law indemnification is actually a claim for contribution barred under New York law, any amendment of plaintiff's first cause of action would be futile. See generally Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). However, the Court grants plaintiff leave to replead its fifth and sixth causes of action.
In sum, defendants' motion for judgment on the pleadings is granted with respect to the first, fifth, and sixth causes of action and denied with respect to the second, third, and fourth causes of action; and plaintiff's motion for leave to replead is denied with respect to the first cause of action and granted with respect to the fifth and sixth causes of action. The parties are reminded that they must appear for a final pretrial conference on March 27, 1998 at 8:30 a.m.
JED S. RAKOFF, U.S.D.J.
Dated: New York, New York
February 3, 1998