Perez v. Morse Diesel International, Inc.

10 A.D.3d 497, 782 N.Y.S.2d 53, 2004 N.Y. App. Div. LEXIS 10519

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 2, 2004
• Status: Published

Opinion

Order, Supreme Court, New York County (Faviola A. Soto, J.), entered January 6, 2004, to the extent it denied the motion of third-party plaintiff Morse Diesel International for summary judgment on its claim against third-party defendant W. Property Resources for breach of contract to procure insurance, unanimously reversed, on the law, without costs, and, on a search of the record, summary judgment granted dismissing Morse Diesel’s cause of action for breach of contract to procure insurance. Appeal from so much of said order as denied summary judgment on the contractual indemnification claim unanimously dismissed, without costs, in view of the subsequent order which, upon renewal, granted third-party plaintiff summary judgment on that claim.

The record establishes that Property Resources purchased a liability policy from CGU/American Employers Insurance Company, with a blanket endorsement for contractually designated additional insureds. Based on this coverage, we find Morse Diesel’s claim that Property Resources breached its obligation to procure insurance untenable. The insurer’s refusal to indemnify Morse Diesel under the coverage purchased by Property Resources does not alter this conclusion (see KMO-361 Realty Assoc, v Podbielski, 254 AD2d 43 [1998]).

The subsequent order, which granted renewal and reversed the order of January 6 to the extent of granting summary judgment on the contractual indemnification claim, precludes us from ruling on the aspect of the appeal involving that claim (see CPLR 5517). Concur—Saxe, J.P., Sullivan, Williams, Friedman and Marlow, JJ.