Opinion
December 16, 1997
Appeal from the Supreme Court, New York County (Carol Arber, J.).
The underlying action arises out of a slip and fall on the sidewalk outside the restaurant owned by defendant General Mills Restaurant, Inc., doing business as Red Lobster, which had leased the premises from plaintiff Queens Office Tower Associates. This action seeks, inter alia, a declaration that, under the lease, General Mills and its insurer, defendant Liberty, owed Queens Office a duty to defend it in the underlying action and to indemnify it and its insurer, plaintiff Landmark, for the cost of the defense and the amount paid in settlement. While the motion court properly granted summary judgment dismissing the complaint to the extent of any claims asserted against General Mills based on the stipulation entered into between the parties in the underlying action, summary judgment should not have been granted with respect to the claim of Landmark insofar as it seeks a declaration against Liberty Mutual with respect to Liberty's coverage and defense obligations to Queens Office as an additional insured under the Liberty policy. The record raises factual issues in this regard, and thus neither Landmark nor Liberty established an entitlement to summary judgment.
Concur — Ellerin, J.P., Williams, Tom and Mazzarelli, JJ.