ITRI Brick & Concrete Corp. v. Aetna Casualty & Surety Co.

Appellate Division of the Supreme Court of New York

ITRI Brick & Concrete Corp. v. Aetna Casualty & Surety Co.

228 A.D.2d 165, 643 N.Y.2d 544, 643 N.Y.S.2d 544, 1996 N.Y. App. Div. LEXIS 6277

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 4, 1996

StatusPublished

Cited by1 cases

This text of 228 A.D.2d 165 (ITRI Brick & Concrete Corp. v. Aetna Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

ITRI Brick & Concrete Corp. v. Aetna Casualty & Surety Co., 228 A.D.2d 165, 643 N.Y.2d 544, 643 N.Y.S.2d 544, 1996 N.Y. App. Div. LEXIS 6277 (N.Y. Ct. App. 1996).

Pincite

Opinion

The IAS Court properly adhered to its prior determination dismissing the complaint, wherein plaintiffs sought a declaration that defendant Aetna was obligated to share with plaintiff State Insurance Fund in the defense, indemnification and/or settlement costs in an underlying action in which an employee of Aetna’s insured sought to recover damages for personal injuries. By virtue of the provisions of General Obligations Law § 5-322.1, as amended by the Legislature in 1981, defendant Aetna was not obligated to indemnify plaintiffs, notwithstanding the existence of an indemnity agreement, because the negligence of the promisee of such agreement, general contractor Mars-Normal Terrace, caused, in part, the injuries which were the subject of the underlying action, as reflected in the stipulation of settlement of that action (see, Brown v Two Exch. Plaza Partners, 76 NY2d 172, 180; Vurchio v Kalikow Lincoln Dev. Co., 187 AD2d 280, 281; Dewitt v Pizzagalli Constr. Co., 183 AD2d 991, 993-994).

We have considered plaintiffs’ remaining arguments and find them to be without merit. Concur—Milonas, J. P., Ellerin, Rubin, Nardelli and Tom, JJ.

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The IAS Court properly adhered to its prior determination dismissing the complaint, wherein plaintiffs sought a declaration that defendant Aetna was obligated to share with plaintiff State Insurance Fund in the defense, indemnification and/or settlement costs in an underlying action in which an employee of Aetna’s insured sought to recover damages for personal injuries. By virtue of the provisions of General Obligations Law § 5-322.1, as amended by the Legislature in 1981, defendant Aetna was not obligated to indemnify plaintiffs, notwithstanding the existence of an indemnity agreement, because the negligence of the promisee of such agreement, general contractor Mars-Normal Terrace, caused, in part, the injuries which were the subject of the underlying action, as reflected in the stipulation of settlement of that action (see, Brown v Two Exch. Plaza Partners, 76 NY2d 172, 180; Vurchio v Kalikow Lincoln Dev. Co., 187 AD2d 280, 281; Dewitt v Pizzagalli Constr. Co., 183 AD2d 991, 993-994).

We have considered plaintiffs’ remaining arguments and find them to be without merit. Concur—Milonas, J. P., Ellerin, Rubin, Nardelli and Tom, JJ.

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Bluebook (online)

228 A.D.2d 165, 643 N.Y.2d 544, 643 N.Y.S.2d 544, 1996 N.Y. App. Div. LEXIS 6277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/itri-brick-concrete-corp-v-aetna-casualty-surety-co-nyappdiv-1996.

Opinion

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