Opinion
February 18, 1999
Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).
Plaintiff, a bricklayer employed by third-party defendant Vertical Design Construction Corp., a subcontractor, was shot by an unknown assailant at the work site. Defendants and third-party plaintiffs Manhattan Powell L.P. and State Construction Development Corp. are the owner of the premises and general contractor on the job, respectively. In its subcontract with State, Vertical had agreed to indemnify and hold harmless Manhattan and State from any claims arising out of Vertical's work. Another provision of the subcontract required Vertical to "obtain, maintain and pay for all insurance required" and to name "[State], [Manhattan] * * * as additional insureds as their interests may appear." When Manhattan and State tendered the defense of the underlying action to Vertical, Empire Insurance Group, Vertical's liability insurer, responded by advising that neither was listed as an additional insured under Vertical's policy.
With respect to the earlier of the two orders on appeal, Manhattan and State had moved for summary judgment on the third-party complaint on the ground that Vertical breached its contractual obligation to procure insurance. The IAS Court properly denied the motion because it was based upon a claim not alleged in the third-party complaint, which had alleged, instead, that Vertical was contractually bound to indemnify them in the event of a recovery against them in the main action.
Taking their cue from the LAS Court, State and Manhattan moved to amend the third-party complaint to allege a cause of action for failure to procure insurance, as contractually required, and for summary judgment based on Vertical's breach of that obligation. The LAS Court granted leave to amend in accordance with the proposed amended complaint submitted but denied summary judgment because of an "apparent defense", i.e., a disclaimer of coverage based on late notice, an issue which nowhere appears in the record and is therefore unpreserved and which, in any event, is irrelevant to the issue of Vertical's liability on the failure to procure insurance claim. We reverse and grant summary judgment based on that claim.
The record is clear that Vertical was obligated to procure insurance for State and Manhattan naming them as additional insureds. It is equally clear that Vertical failed to do so since on neither motion did it offer any proof that, in fact, it had obtained such insurance. In such circumstances, Vertical is liable for the resulting damages, including the amount of damages awarded to or paid to the injured party in the main action, within the limits of the policy that was to have been procured, as well as the costs incurred in defense of the main action (see, Kinney v. Lisk Co., 76 N.Y.2d 215, 219.)
Nor is the award of summary judgment inappropriate for the reason that Vertical had not yet answered the amended third-party complaint. The issue is not raised on appeal. In any event, in two substantive motions dealing with the issue of its failure to procure insurance Vertical has failed to offer or even suggest a valid defense.
Concur — Sullivan, J. P., Nardelli, Lerner and Rubin, JJ.