Summary
finding the party who failed to procure insurance was "liable for the resulting damages, which include the costs and expenses of defending plaintiffs' action"
Summary of this case from Friebely v. C.D. Perry & SonsOpinion
April 19, 1996
Appeal from the Supreme Court, Suffolk County, Gowan, J.
Present — Pine, J.P., Fallon, Callahan, Balio and Davis, JJ.
Order unanimously modified on the law and as modified affirmed with costs to third-party plaintiff and judgment granted in accordance with the following Memorandum: Supreme Court erred in denying the cross motion of defendant and third-party plaintiff, B.R. Fries Associates, Inc., sued herein as B.R. Fries Associates, Inc. (Fries), for partial summary judgment insofar as it sought a declaration that third-party defendant, Island Acoustics, Inc., had a duty to pay the costs and expenses of Fries' defense in the main action based upon the breach by Island Acoustics of its agreement to procure insurance covering Fries. The agreement between the parties provided that Island Acoustics would procure comprehensive general liability insurance covering the construction project and naming Fries as an additional insured. It is undisputed that Island Acoustics failed to comply with that provision. The insurance procurement provision of the agreement is independent of the indemnification provision. Thus, a final determination of Island Acoustics' liability "need not await a factual determination as to whose negligence, if anyone's, caused [plaintiff Vincent Caputo's] injuries" ( Mathew v. Crow Constr. Co., 220 A.D.2d 490, 491). Because Island Acoustics breached its agreement to procure insurance covering Fries, it is liable for the resulting damages, which include the costs and expenses of defending plaintiffs' action ( see, Kinney v Lisk Co., 76 N.Y.2d 215, 219; DiMuro v. Town of Babylon, 210 A.D.2d 373, 374). Thus, we modify the order by granting judgment in favor of Fries accordingly.