Opinion
October 10, 1995
Appeal from the Supreme Court, Kings County (Hurowitz, J.).
Ordered that the order is affirmed, with costs.
A provision in the agreement between the general contractor William L. Crow Construction Company (hereinafter Crow) and the subcontractor Testwell Craig Laboratories, Inc. (hereinafter Testwell) required Testwell to purchase comprehensive general insurance covering the construction project on which they were collaborating, and naming Crow as an additional insured. When the plaintiff, an employee of Testwell, was hurt at the construction site and sued Crow, Crow learned that Testwell had not secured the required insurance coverage. Crow moved for partial summary judgment on the issue of liability on its breach of contract cause of action, and the court granted its motion. We now affirm.
There is no merit to Testwell's claim that an unrelated paragraph in the parties' contract, which required Testwell to indemnify Crow for claims arising from Testwell's negligence, somehow affected Testwell's independent and unconditional obligation to procure insurance naming Crow as an additional insured, or that the indemnification provision created an issue of fact as to Testwell's intention in agreeing to purchase such insurance. It is well settled that "[a] contract to procure or provide insurance coverage is clearly distinct from and treated differently than an agreement to indemnify" (Roblee v. Corning Community Coll., 134 A.D.2d 803, 804; see also, Kinney v. Lisk Co., 76 N.Y.2d 215; Murray v. Curtis Co., 189 A.D.2d 980).
Because the insurance-procurement clause at issue here was entirely independent of the indemnification provision in the parties' contract, a final determination of Testwell's liability need not await a factual determination as to whose negligence, if anyone's, caused the plaintiff's injuries (see, e.g., Hayes v Crane Hogan Structural Sys., 191 A.D.2d 978; Edwards v International Bus. Machs. Corp., 174 A.D.2d 863). Nor need a final determination of Testwell's liability await the outcome of Testwell's fourth-party action against its brokers and insurance company, as it is a general rule that "[t]he potential liability of a third party is not a procedural bar to the granting of summary judgment" (Bittner v. Town of Union Vale, 72 A.D.2d 574, 575).
Finally, the insurance purchase agreement, which required the subcontractor to purchase liability insurance providing coverage for both its own and the general contractor's negligence, does not violate General Obligations Law § 5-322.1 (see, Kinney v Lisk Co., 76 N.Y.2d 215, supra). Bracken, J.P., Sullivan, Friedmann and Krausman, JJ., concur.