Opinion
794
April 18, 2002.
Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered February 13, 2001, which, in an action by a janitor employed by third-party defendants for personal injuries sustained while cleaning a building owned and managed by defendants, granted defendants' (the "owners") and third-party defendants' (the "cleaning contractors") motions for summary judgment dismissing the complaint, and, insofar as appealed from, granted that branch of the cleaning contractors' motion as sought summary judgment dismissing the owners' third-party causes of action against them for indemnification and breach of contract to procure insurance, and denied that branch of the owners' motion as sought partial summary judgment on such third-party causes of action, unanimously modified, on the law, to reinstate the owners' cause of action for breach of contract to procure insurance, and otherwise affirmed, without costs.
EMILY C.F. MANN, for defendants/third-party plaintiffs-appellants.
COURTNEY M. ROBBINS, for third-party defendants-respondents.
Before: Tom, J.P., Andrias, Buckley, Wallach, Lerner, JJ.
Dismissal of the complaint necessarily rendered inoperative the cleaning contractors' contractual obligation to indemnify and defend the owners for any losses, suits, actions, legal fees, costs and expenses arising out of the contracted work and "in any manner directly or indirectly caused, occasioned or contributed to in whole or in part by reason of any action, omission, fault or negligence" by the cleaning contractors or persons under their control (see, Knight v. City of New York, 225 A.D.2d 355, 356; Taylor v. Bande Real Estate Corp., 278 A.D.2d 404). We reject the owners' contention that plaintiff's slip and fall on a wet bathroom floor was an "action" that triggered the indemnification clause. However, we also reject the cleaning contractors' contention that dismissal of the complaint necessarily involved a finding that the owners did not sustain any damages as a result of the cleaning contractors' admitted failure to procure for the owners the liability insurance called for in the cleaning contract (see, Inchaustegui v. 666 5th Ave. Ltd. Partnership, 96 N.Y.2d 111). In the latter regard, issues remain as to the extent to which the owners were covered, if at all, by the insurance that the cleaning contractors did procure. We decline, at this juncture, to rule on the particular items of damages to be awarded in the event of a finding of breach. We have considered the owners' other arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.