Opinion
October 31, 1974
Appeal from the Erie Special Term.
Present — Witmer, J.P., Moule, Cardamone, Mahoney and Goldman, JJ.
Order unanimously affirmed, without costs. Memorandum: On September 28, 1968 plaintiff was injured while a passenger in a vehicle owned by Midwest Emery Freight Systems, Inc., (Midwest) and operated by Jones when it was involved in an accident. Deceased, who was retained as counsel by plaintiff, allegedly failed to bring a cause of action against either Midwest or Jones within the statutory period allowed for commencing a negligence action. Plaintiff brought this malpractice action against deceased's estate and the estate then started a third-party action against Midwest and Jones seeking indemnity or apportionment. A claim of indemnity is not sufficiently alleged solely on the basis that the claims arose out of the same set of facts. Third-party plaintiff must also allege facts which show that third-party defendant's liability rises from the liability of third-party plaintiff to plaintiff. Here, the wrong committed by third-party defendants is separate, distinct and not related in any way to the wrong committed by third-party plaintiff and, therefore, the third-party complaint was properly dismissed ( Horn v. Ketchum, 27 A.D.2d 759).