Opinion
March 31, 1994
Appeal from the Supreme Court, Nassau County (Angelo D. Roncallo, J.).
We disagree with third-party plaintiff that Hawthorne v. South Bronx Community Corp. ( 78 N.Y.2d 433) undermines our decision in Michalak v. Consolidated Edison Co. ( 166 A.D.2d 213, lv dismissed 77 N.Y.2d 989) prohibiting common-law indemnification where a landowner indemnitee is named as an additional insured on a policy procured by a contractor indemnitor pursuant to the parties' contract, on the ground that to permit such would be to allow the insurer a right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered (see also, Rocovich v. Consolidated Edison Co., 167 A.D.2d 524, affd on other grounds 78 N.Y.2d 509; see generally, Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465). Hawthorne (supra) is distinguishable since there the contractor was not required by contract to obtain insurance on behalf of the owner but merely to save the owner harmless against its own negligence, and had two separate policies, one for common-law indemnification and the other for contractual indemnification, neither of which named the owner as an additional insured. The Court of Appeals held that each insurer was equally responsible for indemnifying the owner, but clearly the antisubrogation rule was not implicated (compare, North Star Reins. Corp. v. Continental Ins. Co., 82 N.Y.2d 281, 294-296). We have considered third-party plaintiff's remaining contentions and find them to be without merit.
Concur — Murphy, P.J., Ellerin, Kupferman, Ross and Tom, JJ.