Opinion
February 13, 1996
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
Since plaintiffs did not have keys to the safety deposit boxes of their tenants, but merely controlled access into and provided independent security guard services for the vault room where the boxes were located, defendants were contractually required to defend and indemnify plaintiffs when they were sued by one of their tenants for losses sustained as a result of the theft of diamonds from its box. The exclusion provisions contained in the insurance policies were not applicable since the stolen diamonds were neither in the "care, custody or control" nor in the "physical control" of plaintiffs ( see, County of Broome v Travelers Indem. Co., 88 A.D.2d 720, affd 58 N.Y.2d 753).
Concur — Wallach, J.P., Nardelli, Williams and Mazzarelli, JJ.