Brooklyn Union Gas Co. v. Interboro Asphalt Surface Co.Brooklyn Union Gas Co. v. Interboro Asphalt Surface Co.
—In an action, inter alia, to recover damages for breach of contract and for contractual indemnification, the defendants Interboro Asphalt Surface Company, Inс., and Hartford Accident and Indemnity Company appeal from (1) an order of the Supreme Court, Kings County (G. Aronin, J.), dated April 6, 2001, which granted the plaintiffs’ motion for summary judgment on the causes of action asserted against the defendant Interboro Asphalt Surface Company, Inc., for indemnification and to recover damages for breach of a contract to procure liability insurance, and on the causes of action asserted against the defendant Hartford Accident and Indemnity Company for a judgment declaring that the plaintiff was entitled to cоverage under a policy of liability insurance and to recover damages for breach of contract, and denied their separate cross motions for summary judgment dismissing the cоmplaint insofar as asserted against them, and (2) a judgment of the same court, dated July 18, 2001, which is in favor of the plaintiffs and against them in the principal sum of $542,224; and the. defendant Hartford Accident and Indemnity Company separately appeals from (3) an order of the same court, dated November 21, 2001, which denied its motion for leave to reargue and, in effect, to resettle the decretal provision and to delete the factual recitals of the judgment dated July 18, 2001. Justice Cozier has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1 [c]).
Ordered that the judgment dated July 18, 2001, is modified by adding thereto a provision declaring that the Brooklyn Union Gas Company is an insured under the policy of insurance issued by the defendant Hartford Accident and Indemnity Company to the defendant Interboro Asphalt Surface Company, Inc., by reason of its third-party beneficiary status; as so modified, the judgment is affirmed; and it is further,
Ordered that the appeal from so much of the order dated November 21, 2001, as denied the motion of the defendant Hartford Accident and Indemnity Company for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the appeal from so much of the order dated November 21, 2001, as denied that branch of the motion of the defendant Hartford Accident and Indemnity Company which was, in effect, to resettle the decretal provision of the judgment dated July 18, 2001, is dismissed, as no appeal lies from an order denying resettlement of the decretal provision of a judgment (see Masters, Inc. v White House Discounts,
Ordered that so much of the order dated November 21, 2001, as denied that branch of the motion of the defendant Hartford Accident and Indemnity Company which was, in effect, to delete the factual recitals of the judgment dated July 18, 2001, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The appeal from the intermediate order dated April 6, 2001, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho,
In 1968 the plaintiff Brooklyn Union Gas Company (hereinаfter Brooklyn Union) entered into a contract with the defendant Interboro Asphalt Surface Company, Inc. (hereinafter Interboro), in which Interboro agreed to perform sidewalk repaving work after another contractor completed a gas main replacement project in Queens County (hereinafter the Interboro contract). During the coursе of the repaving work, Interboro paved over a gas shut-off valve located beneath the sidewalk near an apartment building located at 89-11 153rd
The Interboro contract contained a broad indemnification clause requiring Interboro tо indemnify and hold Brooklyn Union harmless from and against, in relevant part, “any and all loss, damage and liability, costs and expenses, and from and against any and all claims” asserted against Brooklyn Union at any time, “whether or not groundless,” caused by or to have arisen from, or claimed to have been caused by or to have arisen from or in connection with the repaving wоrk performed by Interboro, whether or not the damage was attributable in any way to any negligence by Brooklyn Union, and whether or not Interboro was a named defendant in such actions. Thе clause further required Interboro, inter alia, to pay and/or reimburse any and all sums of money paid by Brooklyn Union in settlement of any actions. Finally, the Interboro contract required Interboro to obtain general liability and property damage insurance naming Brooklyn Union as an additional insured.
Although Interboro obtained an insurance policy from the defendant Hartford Accident and Indemnity Company (hereinafter Hartford), the policy failed to name Brooklyn Union as an additional insured. The policy did contain a contractual liability endorsement which specifically provided that Hartford would pay on Interboro’s behalf all sums which Interboro assumed by reason of liability pursuant to written contracts entered into by it, including and exрressly naming the Interboro contract. The endorsement specifically quoted and incorporated the terms of the indemnification clause in the Interboro contract.
In 1971 several actions were commenced against Brooklyn Union and Interboro alleging, inter alia, that Interboro was negligent in paving over the shut-off valve, and that Brooklyn Union was negligent in failing to inspect the valve to determine that it had been rendered inaccessible as a consequence of the repaving work. Those actions were ultimately settled, and
Brooklyn Union made a prima facie showing of entitlement to judgment as a matter of law on the issue of contractual indemnification, and Interboro failed to submit sufficient evidence to raise a triable issue of fact (see CPLR 3212 [b]; Zuckerman v City of New York,
Contrary to Hartfоrd’s contention, the language of the contract between Interboro and Hartford “clearly evidences an intent to permit enforcement by the third party [Brooklyn Union]” (Fourth Ocean Putnam Corp. v Interstate Wrecking Co.,
Since this is, in part, a declaratory judgment action, the Supreme Court should have made a declarаtion in favor of Brooklyn Union that it was an insured under the policy of insurance issued by Hartford to Interboro by reason of its status as a third-party beneficiary (see Lanza v Wagner,
The Supreme Court properly denied that branch of Hartford’s motion which was to amend the preamble of the judgment to delete the recital of the grounds for the granting of Brooklyn Union’s motion, since the motion was accurately described therein (see Kay-Fries, Inc. v Martino,
In light of our determination, it is unnecessary to reach the defendants’ remaining contentions. Krausman, J.P., Townes, Cozier and Rivera, JJ., concur.