American International Group, Inc. v. Sullivan , 655 N.Y.S.2d 939 ( 1997 )

Order, Supreme Court, New York County (Charles Ramos, J.), entered September 12, 1995, which, to the extent appealed from, granted plaintiffs’ cross motion dismissing defendant-appellant Barnett’s third affirmative defense and first and second counterclaims against plaintiffs, unanimously affirmed, without costs.

Defendant-appellant is not required to plead, as an affirmative defense, that he is innocent of wrongdoing or that plaintiffs had knowledge of the fraudulent acts of. the codefendants. The first counterclaim seeks indemnification by plaintiffs for defendant-appellant’s liability, if any, to plaintiffs. If plaintiffs are the actual wrongdoers, and defendant-appellant is innocent, as he claims, then he breached no duty owed to plaintiffs and will not be liable to them in the first instance. Defendant-appellant does not articulate what cause of action the allegations of his second counterclaim are intended to represent, and no recognized, valid cause of action can be gleaned therefrom, no matter how generously they are read.

We have considered defendant-appellant’s remaining arguments and find them to be without merit. Concur—Ellerin, J. P., Wallach, Williams and Mazzarelli, JJ.