Gerald Siffin v. Richard R. Rambuski

Memorandum: Plaintiff was a passenger in an automobile driven by Richard Rambuski and was injured when the vehicle overturned on the property of defendant Drum Raceway, Inc. (Drum) at a time when the racetrack was closed for repair. Plaintiff commenced an action against Rambuski and Drum, both of whom answered and asserted cross claims against each other. Rambuski failed to appear at two scheduled depositions. His attorney informed counsel for Drum that Rambuski had settled with plaintiff and did not intend to appear further. However, he did not move to discontinue the action against him and to dismiss the cross claim (see Mielcarek v Knights, 50 A.D.2d 122). Drums motion for an order directing Rambuski to appear at an examination before trial was denied by Special Term and Drum appeals. Special Term properly held that Drums cross claim did not assert a cause of action for indemnification which would permit Rambuski to be deposed as a party. Although claims for indemnification asserted against a settling tort-feasor are not barred by subdivision (b) of section 15-108 of the General Obligations Law (McDermott v City of New York, 50 N.Y.2d 211, 219-220; Franzek v Calspan Corp., 78 A.D.2d 134, 141-142), merely using the term "indemnification" in the pleadings is insufficient to protect against the bar. Drums cross claim does not assert any contractual or quasi-contractual relationship which would support a claim of indemnification. Rather, Drum contends that Rambuskis negligent conduct was responsible in whole or in part for the accident, and thus states a claim for contribution (McDermott v [87 A.D.2d 979 Page 980]