Waldbaums, Inc. v. Lumbermans Mutual Casualty Co.

303 A.D.2d 402, 755 N.Y.S.2d 880

Opinion

—In an action for a judgment declaring that the defendants are obligated to defend and indemnify the plaintiffs in an underlying action entitled Brown v Waldbaums Inc., commenced in the Supreme Court, Bronx County, under Index No. 16975/93, the defendants appeal from a judgment of the Supreme Court, Westchester County (Cowhey, J.), dated September 20, 2001, which, upon an order of the same court, dated July 3, 2001, denying their motion for summary judgment dismissing the complaint and granting that branch of the plaintiffs’ cross motion which was for summary judgment declaring that the defendants are obligated to indemnify them for the amount paid in the underlying action, is in favor of the plaintiffs and against them in the principal sum of $179,070.

Ordered that the judgment is reversed, on the law, with costs, and that branch of the plaintiffs’ cross motion which was for summary judgment declaring that the defendants are obligated to indemnify them for the amount paid in the underlying action is denied.

The Supreme Court erred in granting that branch of the plaintiffs’ cross motion which was for summary judgment declaring that the defendants were obligated to indemnify them in the underlying action. There are questions of fact as to whether the plaintiffs are entitled to coverage under the policy’s vendor’s endorsement (see e.g. Sobers v Lopresti, 283 AD2d 633 [2001]). Santucci, J.P., Friedmann, Luciano and Rivera, JJ., concur.