White v. Church of Our Lady of Sorrows

Appellate Division of the Supreme Court of New York

White v. Church of Our Lady of Sorrows

255 A.D.2d 109, 679 N.Y.S.2d 381, 1998 N.Y. App. Div. LEXIS 11651

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

DecidedNovember 5, 1998

StatusPublished

Cited by1 cases

This text of 255 A.D.2d 109 (White v. Church of Our Lady of Sorrows) 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

White v. Church of Our Lady of Sorrows, 255 A.D.2d 109, 679 N.Y.S.2d 381, 1998 N.Y. App. Div. LEXIS 11651 (N.Y. Ct. App. 1998).

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Opinion

—Order, Supreme Court, New York County (Paula Omansky, J.), entered February 18, 1997, which denied defendant and third-party plaintiffs motion for summary judgment on its cross-claim against Patrick J. O’Donoghue Construction, Inc. for indemnification, unanimously reversed, on the law, without costs, and the motion granted.

The church initially established its entitlement to summary judgment, as well as the general contractor O’Donoghue’s liability for damages suffered by plaintiff, based upon its uncontroverted showing that O’Donoghue failed to procure insurance for the church as per their agreement (see, Kinney v Lisk Co., 76 NY2d 215; Morel v City of New York, 192 AD2d 428, 429). O’Donoghue’s contention that the church waived this breach must be rejected inasmuch as it fails to present any evidence tending to establish that the purported waiver was the intentional, voluntary relinquishment of a known right (see, Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968; Santamaria v 1125 Park Ave. Corp., 238 AD2d 259, 261). Indeed, there is no evidence here that the church even knew that O’Donoghue had failed to provide the agreed-upon coverage. Concur — Rosenberger, J. P., Ellerin, Nardelli and Williams, JJ.

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—Order, Supreme Court, New York County (Paula Omansky, J.), entered February 18, 1997, which denied defendant and third-party plaintiffs motion for summary judgment on its cross-claim against Patrick J. O’Donoghue Construction, Inc. for indemnification, unanimously reversed, on the law, without costs, and the motion granted.

The church initially established its entitlement to summary judgment, as well as the general contractor O’Donoghue’s liability for damages suffered by plaintiff, based upon its uncontroverted showing that O’Donoghue failed to procure insurance for the church as per their agreement (see, Kinney v Lisk Co., 76 NY2d 215; Morel v City of New York, 192 AD2d 428, 429). O’Donoghue’s contention that the church waived this breach must be rejected inasmuch as it fails to present any evidence tending to establish that the purported waiver was the intentional, voluntary relinquishment of a known right (see, Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968; Santamaria v 1125 Park Ave. Corp., 238 AD2d 259, 261). Indeed, there is no evidence here that the church even knew that O’Donoghue had failed to provide the agreed-upon coverage. Concur — Rosenberger, J. P., Ellerin, Nardelli and Williams, JJ.

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Bluebook (online)

255 A.D.2d 109, 679 N.Y.S.2d 381, 1998 N.Y. App. Div. LEXIS 11651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-church-of-our-lady-of-sorrows-nyappdiv-1998.

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