Opinion
Decided November 18, 1982
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, NORMAN A. STILLER, J.
Peter J. Murrett, III, for appellant.
Karl S. Essler for respondent.
MEMORANDUM.
The order of the Appellate Division should be modified, with costs, to deny summary judgment to defendant Bradley Williams, Inc., to grant summary judgment to plaintiff and to remit the case to Supreme Court for entry of a judgment declaring that said defendant is obligated to indemnify plaintiff for any recovery in the underlying action but not to defend the action; as so modified, the order should be affirmed.
For the reasons stated in the dissenting memorandum at the Appellate Division, the lessee is obligated by the terms of the agreement (which is one of indemnification rather than exoneration) in the lease to indemnify the lessor for any recovery obtained against it in the underlying personal injury action of defendant Palmeri (see Gross v Sweet, 49 N.Y.2d 102, 108). Nothing in the language of the agreement however requires the lessee to provide a defense for the lessor in that action. A breach of the obligation to provide insurance for the lessor would at most provide a predicate for an action for damages sustained as a result of the breach; it would not authorize the entry of what might be described as the equivalent of a decree of specific performance.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order modified, with costs to plaintiff, and case remitted to Supreme Court, Wyoming County, for entry of judgment in accordance with the memorandum herein and, as so modified, affirmed.