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Rowland v. 1306 Realty Associated

Appellate Division of the Supreme Court of New York, Second Department
May 17, 1993
193 A.D.2d 726 (N.Y. App. Div. 1993)

Opinion

May 17, 1993

Appeal from the Supreme Court, Kings County (Ramirez, J.).


Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendant-respondent's motion for summary judgment. The defendant-appellant did not deny that it failed to comply with the provision of the contract requiring it to obtain liability insurance naming the defendant-respondent as the insured. The defendant-appellant is therefore liable to indemnify the defendant-respondent for any payments made by the latter to the plaintiffs in this action (see, Kinney v Lisk Co., 76 N.Y.2d 215).

The provision of the contract reserving the defendant-respondent's right to procure liability insurance at the defendant-appellant's expense should not be read as imposing a duty on the defendant-respondent to do so, since such would be inconsistent with the clear language of the contract (see, Sutton v East Riv. Sav. Bank, 55 N.Y.2d 550, 555). Moreover, contrary to the defendant-appellant's contentions, the defendant-respondent was under no duty to mitigate damages by procuring such insurance (cf., Tynan Incinerator Co. v International Fid. Ins. Co., 117 A.D.2d 796, 797-798). In addition, the defendant-appellant's allegations that the defendant-respondent waived its rights under the contract were unsubstantiated and speculative and therefore were insufficient to require the denial of the defendant-respondent's motion for summary judgment (see, Zuckerman v City of New York, 49 N.Y.2d 557, 562; Jones v Gameray, 153 A.D.2d 550, 551; Kennerly v Campbell Chain Co., 133 A.D.2d 669, 670). Miller, J.P., O'Brien, Copertino and Joy, JJ., concur.


Summaries of

Rowland v. 1306 Realty Associated

Appellate Division of the Supreme Court of New York, Second Department
May 17, 1993
193 A.D.2d 726 (N.Y. App. Div. 1993)
Case details for

Rowland v. 1306 Realty Associated

Case Details

Full title:THEODORE ROWLAND et al., Plaintiffs, v. 1306 REALTY ASSOCIATED et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 17, 1993

Citations

193 A.D.2d 726 (N.Y. App. Div. 1993)
598 N.Y.S.2d 53

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