Memorandum Opinion and Order

THEODORE H. KATZ, United States Magistrate Judge.

The parties in this action, arising under the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq., consented to trial before me, pursuant to 28 U.S.C. § 636 (c) and Federal Rule of Civil Procedure 73. The trial, held from July 10, 2001 to July 18, 2001, resulted in a jury verdict in favor of Plaintiff, Arthur Roffi, against Defendant/Third-Party Plaintiff Metro-North Commuter Railroad (hereinafter "Metro-North"). Metro-North now moves for summary judgment on its breach of contract claim against Third-Party Defendant Lehrer McGovern Bovis, Inc. (hereinafter "Lehrer McGovern"), pursuant to Rule 56 of the Federal Rules of Civil Procedure. Lehrer McGovern has cross-moved, pursuant to Rule 50 of the Federal Rules of Civil Procedure, for judgment as a matter of law with respect to Metro-North's breach of contract claim.

For the reasons that follow, the Court grants Lehrer McGovern's cross-motion. Accordingly, Metro-North's motion is denied and its breach of contract claim against Lehrer McGovern is dismissed with prejudice.

BACKGROUND

Plaintiff Arthur Roffi originally brought this personal injury action against his former employer, Metro-North Commuter Railroad, under the Federal Employers' Liability Act, alleging that Defendant's negligence had caused him to develop a chronic nose bleed condition, which, in turn, interfered with his ability to receive proper treatment for a previously existing heart condition. In particular, Plaintiff alleged that he had been exposed to soot and dust on three separate occasions, December 13, 1995, October 30, 1996, and February 21, 1997, while working as a Metro-North police officer in Grand Central Terminal. During the period of the latter two incidents, there was a significant amount of construction activity in Grand Central Terminal, as part of the Grand Central Terminal Restoration and Revitalization Project (hereinafter "the Project"). As General Manager of the Project, Lehrer McGovern was responsible for overseeing all construction-related activities at the terminal.

The third-party action arises out of the Construction Management and General Services Agreement between GCT Venture, Inc. and Lehrer McGovern, dated December 6, 1995 (hereinafter "Agreement"), governing the terms of their relationship during the Project. Metro-North, as the owner of Grand Central Terminal, is specifically named as a third-party beneficiary of the contract. See Agreement, Art. 14.1. Among other things, the Agreement required Lehrer McGovern, as the contractor, to indemnify Metro-North for "all losses, claims, demands, liabilities, suits, or actions (including all reasonable expenses and attorney's fees) for injuries to or the death of any person . . . caused by or resulting from (i) the negligence of Contractor or of any Subcontractors or the employees of either." In addition, Lehrer McGovern was obligated to procure liability insurance for the Project. The Agreement provides, in pertinent part:

"Contractor shall purchase or cause to be purchased from and maintain in a company or companies lawfully authorized to do business in New York such insurance as will protect Contractor and the parties required to be named as additional insureds hereunder . . . from claims set forth below for which they may be liable and which may arise out of or result from Contractor's operations under the Agreement, whether such operations be by Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable . . . ."

Agreement, Art. 12.1(a). Under the terms of the Agreement, Metro-North was one of the parties Lehrer McGovern agreed to name as an additional insured under its insurance policy. With regard to additional insureds, the Agreement further provides that:

"Coverage of such additional insureds shall include protection against all liability of the additional insureds arising out of or in any way related to the operations performed for or in connection with the additional insureds or any one of them by the Contractor or any Subcontractor, including without limit liability of each additional insured arising out of its general supervision of operations with respect to safety or otherwise, or arising out of its ownership or control of the premises on which such operations are performed."

Agreement, Art. 12.1(c).

Lehrer McGovern's insurance policy with American International Group (hereinafter "AIG"), its insurer, specifically names Metro-North as an additional insured. See Insurance Policy of Lehrer McGovern Bovis (hereinafter "Insurance Policy"), Form B.

On November 12, 1996, Metro-North informed Lehrer McGovern of the October 1996 incident involving Plaintiff, and requested that the matter be forwarded to Lehrer McGovern's insurance company, in the event that Metro-North should incur expenses as a result of the incident. See Letter from Phyliss Rachmuth to Diane Nieves Cobb, dated November 12, 1996, attached as Exhibit D to Memorandum of Law in Support of Defendant/Third-Party Plaintiff's Motion for Judgment, dated August 7, 2001 (hereinafter "Metro-North Mem."). Upon receiving the Complaint in this action, Metro-North sent another letter to Lehrer McGovern, seeking to have AIG, Lehrer McGovern's insurer, defend and indemnify it in this lawsuit. See Letter from Richard D. Newmark, Esq. to Diane Nieves Cobb, dated April 27, 1999, attached as Exhibit G to Metro-North Mem. In response, an AIG representative sent a letter to Metro-North indicating that "[a] review of the complaint filed by [Roffi] does not reveal any allegations of negligence due to the construction activities at Grand Central Terminal. As such, there are no allegations whatsoever contained in the complaint that would trigger a defense for Metro North for these incidents." See Letter from Michael Illuzzi to Richard Newmark, dated June 1, 1999 (hereinafter "Insurance Letter"), attached as Exhibit I to Metro-North Mem. The letter also indicated that Metro-North should submit to AIG any materials in its possession that would indicate that the loss "arose out of the construction activities of [Lehrer McGovern] or one of its subcontractors," in order to have the issue revisited. Id. Upon receipt of the insurer's letter, Metro-North filed a Third-Party Complaint against Lehrer McGovern for indemnification and breach of its contractual obligation to procure insurance coverage for Metro-North.

At trial, all issues in the first-party action, between Plaintiff Roffi and Metro-North, were determined by the jury. As part of its determination, and with the parties' consent, the jury made findings on the causation of Plaintiff's injuries, that is, whether his injuries were caused in whole or in part by the actions of Metro-North or Lehrer McGovern. Although advised that Metro-North was responsible to Roffi for any negligence of Lehrer McGovern, the jury was also asked to apportion the responsibility for Plaintiff's injuries, if any was found, between Lehrer McGovern and Metro-North for the October 30, 1996 and the February 21, 1997 incidents, so that liability on the indemnification claim could be determined. It also determined to what extent each of the three incidents contributed, if at all, to Plaintiff's injuries. Although the jury was aware of Lehrer McGovern's contractual obligation to indemnify Metro-North for that portion of Roffi's injuries, if any, attributable to Lehrer McGovern, the Court ruled that no mention would be made of Metro-North's insurance coverage in front of the jury, in order to avoid prejudice to Metro-North and Lehrer McGovern vis-à-vis Plaintiff. Nor was the jury asked to determine whether Lehrer McGovern had breached its contractual obligation to Metro-North to procure insurance.

On July 18, 2001, the jury determined that Metro-North was liable to Plaintiff for his injuries, and awarded Plaintiff $505,000 in damages for past and future lost wages and past pain and suffering. The jury also determined that Third-Party Defendant Lehrer McGovern's negligence contributed to Roffi's October 30, 1996 and February 21, 1997 injuries, finding it 25% at fault with regard to the October 1996 incident and 75% at fault with regard to the February 1997 incident. Without conceding the propriety of the jury's verdict, Lehrer McGovern does not dispute that it is responsible for one-third of Roffi's damages based on the jury verdict, pursuant to its contractual obligation to indemnify Metro-North for liability arising out of its own negligence while supervising the Grand Central Restoration and Revitalization Project. However, even though AIG was informed that the jury determined that a portion of Plaintiff's injuries arose out of the performance of work on the Project, as of the present date, AIG has not modified its decision to deny insurance coverage to Metro-North. See Defendant/Third-Party Plaintiff's Rule 56.1 Statement, ¶ 17.

Metro-North has thus brought the instant motion for summary judgment, alleging Lehrer McGovern breached its contractual obligation to procure insurance for the benefit of Metro-North for injuries to its employees resulting from construction work on the Project. Lehrer McGovern has cross-moved, asserting that 1) Metro-North's motion is procedurally deficient, 2) Metro-North did not prove the elements of its breach of contract claim during trial, and 3) Lehrer McGovern has not breached its contract because it has procured the requisite insurance.

DISCUSSION

I. Summary Judgment Standards

Rule 56(c), Fed.R.Civ.P., provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510 (1986); see also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). While the Court must draw all reasonable inferences against the moving party in assessing whether a genuine issue of fact exists, the party opposing the motion may not simply rest on the allegations in its pleadings. See Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Lightfoot v. Union Carbide, 110 F.3d 898, 908 (2d Cir. 1997). Nor may the nonmovant rely on evidence that is merely colorable, speculative or conclusory. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511; PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1111 (2d Cir. 1997). To defeat a motion for summary judgment, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of [Rule 56(e)], the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986) (citations omitted); see also R.B. Ventures, Ltd., 112 F.3d at 57. Where no "reasonable jury could return a verdict for the nonmoving party, " summary judgment is appropriate. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.

II. Lehrer McGovern's Cross-Motion

Lehrer McGovern asserts that, it should be granted judgment as a matter of law on Metro-North's breach of contract claim on the grounds that, 1) Metro-North's motion is procedurally deficient, 2) Metro-North did not prove the elements of its claim during trial, and 3) Lehrer McGovern has procured the requisite insurance.

Lehrer McGovern claims that Metro-North's motion is procedurally deficient in a number of ways. In making its initial "Motion for Judgment," Metro-North did not specify under which rule of the Federal Rules of Civil Procedure it was bringing its motion. Moreover, the motion did not meet the requirements of a Rule 56 motion for summary judgment, since it was not accompanied by an affidavit or a statement of undisputed facts. See Local Civil Rule 56.1 (S.D.N.Y.). Nor did the motion conform to the requirements of a Rule 50 post-trial motion, since evidence was submitted along with the motion, that was not a part of the trial record.

Although Lehrer McGovern is correct in its contention that the motion, as originally submitted, was procedurally deficient, the Court subsequently granted Metro-North leave to remedy the procedural deficiencies of its summary judgment motion. Metro-North has done so, and its motion in now properly before the Court. Lehrer McGovern's first argument is therefore moot.

Lehrer McGovern also contends that the evidence submitted at trial is insufficient to sustain Metro-North's claim that Lehrer McGovern breached its contract to procure insurance. It is undisputed that, at trial, the only evidence submitted in support of Metro-North's breach of contract claim was the contract between Metro-North and Lehrer McGovern. According to Lehrer McGovern, Metro-North failed to present any competent evidence of breach. Moreover, Lehrer McGovern contends that the Court should not now consider the evidence submitted with Metro-North's summary judgment motion, to the extent it was not introduced at trial. At the close of Metro-North's case in chief, Lehrer McGovern moved for judgment as a matter of law. It now renews the motion.

In response, Metro-North asserts that since the jury was not required to decide the issue of whether Lehrer McGovern breached its contractual obligation to procure insurance, evidence of breach did not need to be submitted to the jury. Moreover, it points out that, along with its motion for summary judgment, it has attached a letter indicating AIG's coverage decision with regard to Plaintiff's injuries, which it contends establishes a breach. Somewhat inconsistently, and in the alternative, Metro-North also claims that once the contract, establishing Lehrer McGovern's obligation to procure insurance, was entered into evidence, it was Lehrer McGovern's burden to prove that the obligation had been met. Since Lehrer McGovern did not have the insurance policy entered into evidence during the jury trial, it failed to meet this burden.

The record demonstrates that the issue of whether Lehrer McGovern had breached its contractual obligation to Metro-North to procure insurance was not intended to be submitted to the jury. In effect, the parties agreed to a bifurcation of the trial, in order to simplify the jury's role and avoid potential prejudice to Metro-North and Lehrer McGovern by the injection of the insurance issue into the trial.

The only demand for a jury trial was made by Plaintiff in his Complaint. Neither the Third-Party Complaint nor the Answer of the Third-Party Defendant contains a demand for a jury trial. Where the only jury trial demand in a case is made by the plaintiff with respect to its claims against the defendant, the parties to the third-party action are deemed to have waived their rights to have a jury adjudicate their claims, to the extent that they are independent of the plaintiff's claims. See Rosen v. Dick, 639 F.2d 82, 88 (2d Cir. 1980); BD v. DeBuono, 193 F.R.D. 117, 127-28 (S.D.N.Y. 2000). Rule 38(c) of the Federal Rules of Civil Procedure provides that "[un the demand [for a jury trial] a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable." The provision "for all issues so triable" has been limited by the Second Circuit to mean those issues with which the demander is connected. See Rosen, 639 F.2d at 91 (general jury demand "does not mean that any jury demand ensures a jury trial for every issue regardless of the demander's connection with it"); see also Sound Video Unlimited. Inc. v. Video Shack Inc., 700 F. Supp. 127, 145 (S.D.N.Y. 1988).

It is clear that the third-party breach of contract claim does not fall within the scope of Plaintiff's original jury trial demand; Plaintiff was suing only for injuries sustained in the course of his employment, under the Federal Employers' Liability Act. Therefore, Defendant/Third-Party Plaintiff Metro-North and Third-Party Defendant Lehrer McGovern had no right to rely on Plaintiff's original jury demand with respect to their claims. See Rule 38(d), Fed.R.Civ.P. ("The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury."). Moreover, there is no indication that they did rely on Plaintiff's jury demand — neither third party requested jury instructions regarding the construction of the contract, or objected to their absence. The parties tacitly accepted that the breach of contract claim would be addressed by the Court after the jury rendered its verdict on causation, in order to keep information about Defendant's insurance coverage from affecting the jury's verdict. Cf. Macri v. Park South Associates, 198 A.D.2d 199, 200, 604 N.Y.S.2d 92 (1st Dep't 1993) (even after a determination of liability on the primary claims was made by the jury, third-party's claim of failure to procure insurance remained pending); compare Amoco Oil Co. v. Gino Lucadamo Sons, Inc., 260 A.D.2d 516, 517, 688 N.Y.S.2d 632, 633-34 (2d Dep't 1999) (where parties submitted a contract interpretation claim regarding the failure to procure insurance to the jury, they had no right to later claim that the issue was for the court to decide).

Thus, Metro-North was not required to submit all of the evidence required to prove its third-party claims during the initial jury trial. The presentation of evidence relating to the third-party claims at that phase would have resulted in undue confusion, prejudice, and a waste of jury time. It was permissible for Metro-North to submit additional evidence when bringing its motion for summary judgment, as provided for under Rule 56 of the Federal Rules of Civil Procedure. Moreover, Lehrer McGovern also chose to submit additional evidence to the Court in response to the motion. Thus, Lehrer McGovern's argument is without merit and its Rule 50(b) cross-motion, based on the claim that Metro-North did not prove its breach of contract claim at trial, must be denied.

III. Breach of the Contractual Obligation to Procure Insurance

Metro-North has moved for summary judgment on its breach of contract claim. Although Lehrer McGovern has opposed that motion, in effect, it has cross-moved for summary judgment. Lehrer McGovern terms its cross-motion a Rule 50(b) motion, because it contends that the lack of evidence at the trial of breach of contract entitles it to a judgment as a matter of law. As discussed above, however, the breach of contract issue was neither submitted to the jury nor abandoned, and remains to be decided by the Court. Moreover, Lehrer McGovern, as did Metro-North, has now submitted evidence in support of its cross-motion that goes beyond that included in the record before the jury, and it continues to argue that it is entitled to a judgment as a matter of law. Accordingly, the Court treats both Metro-North's motion and Lehrer McGovern's cross-motion as summary judgment motions. Further, because the Court concludes that there are no material facts in dispute, it is able to resolve the breach of contract claim without a further trial or evidentiary hearing.

The Court is being asked to determine a narrow issue — whether AIG's apparent determination that Metro-North will not be provided coverage under the insurance policy procured by Lehrer McGovern, procurement provision in its contract, where there is no dispute that coverage for the liability incurred by Metro-North with respect to Plaintiff was contemplated in its contract with Lehrer McGovern, and that the insurance contract secured by Lehrer McGovern with AIG is facially sufficient to satisfy the contractual obligation in question. Metro-North does not dispute that it was named as an additional insured in Lehrer McGovern's insurance policy with AIG, and it does not appear to contend that on its face the insurance policy did not provide coverage commensurate with Lehrer McGovern's contractual obligations. Metro-North nevertheless claims that Lehrer McGovern breached its contractual obligation because AIG, the insurer, has denied it defense and liability coverage for Plaintiff Roffi's FELA claims.

Lehrer McGovern responds that it did procure for Metro-North the level of insurance required by the agreement. In support, Lehrer McGovern has submitted a copy of its insurance policy with AIG. Lehrer McGovern asserts that coverage decisions made by AIG have no bearing on its liability, since it procured the requisite insurance. It further contends that if Metro-North is dissatisfied with a coverage decision made by AIG, its remedy is to bring an action against the insurance company directly.

Unlike a contractual provision that requires one party to indemnify another for its own negligence, an agreement that obligates one party to a construction contract to procure insurance for the other party is valid and enforceable in New York. See Kinney v. Lisk Co., 76 N.Y.2d 215, 218, 557 N.Y.S.2d 283, 285 (1990); Zito v. Occidental Chemical Corp., 259 A.D.2d 1015, 1015, 688 N.Y.S.2d 307, 307 (4th Dep't 1999). "An agreement to procure insurance is not an agreement to indemnify or hold harmless, and the distinction between the two is well recognized."Kinney, 76 N.Y. 2d at 218, 557 N.Y.S.2d at 285; see also McEllistrem v. CAB Associates, No. CV-93-35l9, 1996 WL 524392, at *10 (E.D.N.Y. Sept. 3, 1996) ("An agreement to procure insurance specifically anticipates the promisee's "continued responsibility' for its own negligence for which the promisor is obligated to furnish insurance.") (quoting Kinney, 76 N.Y.2d at 218, 557 N.Y.S.2d at 285). When a party is named as an additional insured in an insurance policy, the insurance extends to cover its negligence, as well as that of the original insured party. See Impulse Enterprises/F V Mechanical Plumbing Heating v. St. Paul Fire Marine Ins. Co., 282 A.D.2d 266, 267, 723 N.Y.S.2d 177, 178 (1st Dep't 2001);Whalen v. City of New York, 270 A.D.2d 340, 343, 704 N.Y.S.2d 305, 308 (2d Dep't 2000); Consolidated Edison v. Hartford Ins. Co. 203 A.D.2d 83, 83-84, 610 N.Y.S.2d 219, 221 (1st Dep't 1994).

A failure by the promisor to procure insurance for the benefit of the promisee, pursuant to an insurance procurement provision, constitutes a breach of contract by the promisor. Moreover, a breach may also occur where insurance has been procured, if the insurance coverage procured does not match the coverage promised in the insurance procurement agreement. See Nrecaj v. Fisher Liberty Co., 282 A.D.2d 213, 214, 723 N.Y.S.2d 26, 28 (1st Dep't 2001); Consolidated Edison, 203 A.D.2d at 85; 610 N.Y.S.2d at 221; Clapper v. County of Albany, 188 A.D.2d 774, 775, 591 N.Y.S.2d 258, 260 (3d Dep't 1992). It is this proposition that Metro-North heavily relies upon to support its motion for summary judgment. See Metro-North Mem. However, there is a gap that has not been bridged between this proposition and the question presented here, where it appears that the proper insurance was procured by the promisor but the insurance company disclaims coverage.

The cases do not support Metro-North's position that an insurance company's disclaimer of coverage gives rise to a breach of contract by the party who is contractually obligated to procure insurance, where the party procured an insurance policy which, on its face, provides coverage commensurate with the party's contractual obligation. Indeed, the only cases which appear to have addressed the issue in any way have taken the position that the refusal of an insurer to provide coverage promised in a contract does not, in itself, constitute a breach of contract on the part of the promisor. See Hendershot v, Consolidated Rail Corp., No. 95 Civ. 7899 (BSJ), 1998 WL 240495, at **2-3 (S.D.N Y May 12, 1998) (holding that a breach of contract claim could not be decided on a motion for summary judgment even where it was undisputed that the insurer denied coverage for plaintiff's claims; issue of fact was whether the proper insurance was procured); Garcia v. Great Atlantic Pacific Tea Company, Inc., 231 A.D.2d 401, 401-2, 647 N.Y.S.2d 2, 3 (1st Dep't 1996) (holding that when an insurer disclaimed coverage on procured insurance, the procuring party was not responsible for the defense and indemnification of the party for whom the insurance had been procured; to the extent the insured is aggrieved, the proper remedy is to bring a declaratory judgment action against the insurance company); Binasco v. Break-Away Demolition Corp., 256 A.D.2d 373, 374, 681 N.Y.S.2d 567, 569 (2d Dep't 1998) (holding that the insurer's refusal to fully reimburse the party for whom the insurance was procured, did not prove that the policy that was procured did not require full reimbursement coverage); Murphy v. University Club, 200 A.D.2d 532, 533, 607 N.Y.S.2d 13, 15 (1st Dep't 1994) (holding that "the mere fact that [insurer] has apparently disclaimed, without any indications of the reasons for the disclaimer at this juncture, is not probative of a breach of contract by [promisor]"). Moreover, there are a number of cases which, although they do not address the issue of an insurer's disclaimer directly, hold that the procurement of a facially sufficient insurance policy satisfies the insurance procurement requirement in a contract. See Wetstein v. West Terrace Construction Co., No. 95 Civ. 5476, 1997 WL 777388, at *2 (S.D.N.Y. Dec. 17, 1997);Boyette v. Algonquin Gas Transmission Co., 952 F. Supp. 192, 201 (S.D.N.Y. 1997); Paoangeli v. Cornell Univ., 723 N.Y.S.2d 835, 840 (N.Y.Sup.Ct. 2001).

Although there are cases which, upon first reading, may appear to support the position taken by Metro-North, see, e.g., Gravatt v. City of New York, No. 97 Civ. 0354 (RWS), 1998 WL 171491, at *21 n. 8 (S.D.N.Y. April 10, 1998); McEllistrem, 1996 WL 524392, at *11; Clapper, 188 A.D.2d 774, 591 N.Y.S.2d 258, a careful reading of these cases makes it clear that they do not address the situation currently before the Court. In McEllistrem, for example, the court took somewhat contradictory positions. Despite stating, in dicta, that a breach would result from an insurer's denial of coverage, see McEllistrem, 1996 WL 524392, at *11, the McEllistrem court denied summary judgment on the ground that "it cannot be determined whether on the face of the insurance agreement [promisor] has breached its insurance procurement agreement with [promisees] ." Id. (emphasis added). The McEllistrem court also stated that the mere fact that an insurance company has declined coverage does not mean that the party required to procure the insurance is in breach; it left open the possibility that it was the insurer who was in breach, depending on the disposition of a pending fourth party action, seeking a declaration that the insurance company was required to defend and indemnify the party for whom the insurance was procured. See McEllistrem, 1996 WL 524392, at *11 n. 18. Nor does the Court considerGravatt dispositive, since it does not stand for the proposition that the failure of an insurance company to provide coverage constitutes a breach of contract by the party obligated to procure the insurance. It merely stands for the proposition that where the requisite coverage does not exist under an insurance policy, a breach of an insurance procurement provision has occurred. See Gravatt, 1998 WL 171491, at *21 n. 8. Finally, the Clapper case, another case which appears to favor Metro-North's view, was similarly decided on other grounds. See Clapper, 188 A.D.2d 774, 591 N.Y.S.2d 258. In that case, the court determined that the insurance procurement provision was breached because the insurance policy that was procured did not provide for liability coverage for the promisee's acts, and not because the insurance company simply refused coverage. See id., 188 A.D.2d at 776, 591 N.Y.S.2d at 260.

Were insurance companies' decisions regarding the scope of coverage required by their policies always correct, there would be no need for declaratory judgment actions involving insurance policies. Yet, insurance companies' coverage decisions are often successfully challenged in court proceedings. Clearly, the mere fact that coverage has been denied by an insurance company does not mean that such coverage does not, in fact, exist under the contract. Therefore, the decision of an insurer to deny coverage to a party does not, in itself, constitute a breach of an insurance procurement provision by the party responsible for procuring the insurance, particularly where there is no dispute as to the facial sufficiency of the policy that was procured.

Under the Agreement, Lehrer McGovern was required to procure such insurance as was necessary to protect Metro-North, as an additional insured,

"against all liability of the additional insureds arising out of or in any way related to the operations performed for or in connection with the additional insureds or any one of them by the Contractor or any Subcontractor, including without limit liability of each additional insured arising out of its general supervision of operations with respect to safety or otherwise, or arising out of its ownership or control of the premises on which such operations are performed."

Agreement, Art. 12.1(c). The insurance policy actually procured by Lehrer McGovern covers Metro-North as an additional insured "with respect to liability arising out of "your work' for that insured by or for you." Insurance Policy, Form B. Lehrer McGovern asserts that this policy provides the requisite level of insurance, and Metro-North has not argued otherwise. It merely argues that AIG's decision indicates otherwise. However, AIG, in preliminarily denying coverage for Metro-North arising out of plaintiff's claims, clearly suggested that coverage would exist under the insurance policy if Metro-North demonstrated that "the loss arose out of the construction activities of Bovis or any of its subcontractors." See Insurance Letter. Thus, AIG's decision was seemingly based on its understanding of the factual allegations in the Complaint, and not on any sort of limitation on the scope of coverage under the insurance policy, which was inconsistent with the Agreement. A jury has now determined that Roffi's injuries did arise, in part, out of the work of Lehrer McGovern or one of its subcontractors. Although AIG has not modified its coverage decision since being informed of the jury verdict, this Court cannot conclude that the policy procured by Lehrer McGovern does not provide the requisite coverage, particularly in light of the fact that there is no evidence of a formal written request by Metro-North for a reconsideration of AIG's decision.

There is no evidence before the Court that suggests that Lehrer McGovern did not procure the proper type or level of insurance for Metro-North's benefit. Under these circumstances, the Court concludes that Metro-North has failed to show that a breach of contract has occurred. Since a breach of contract cannot be proven based upon the undisputed facts contained in the record, Lehrer McGovern's cross-motion for summary judgment is granted and Metro-North's motion for summary judgment is denied. Such a result does not leave Metro-North without recourse, since it always had, and retains, the option of bringing a declaratory judgment action against AIG, as an additional insured under the policy.

CONCLUSION

For the reasons discussed above, Metro-North's motion for summary judgment on the breach of contract claim is denied and Lehrer McGovern's cross-motion on the breach of contract claim is granted. A judgment in this action can now be entered, containing the following provisions. Plaintiff Arthur Roffi is awarded $468,756.80 in damages against Metro-North, which represents the jury's award after discounting Plaintiff's future lost earnings to their present value. Third-Party Defendant Lehrer McGovern is liable to Third-Party Plaintiff Metro-North for one-third of the judgment, pursuant to its contractual obligation to indemnify Metro-North. Metro-North's breach of contract claim for failure to procure insurance is dismissed with prejudice. A judgment consistent with this opinion, providing also for post-judgment interest, shall be entered.

SO ORDERED.