Opinion
April 9, 2001.
April 30, 2001.
Goldberg Associates, New York, N.Y. (Kenneth D. Goldberg and Russell B. Scarcella of counsel), for appellants.
Sweeney, Cohn, Stahl Vaccaro, White Plains, N.Y. (Wayne H. Spector of counsel), for respondents Mid-Hudson Equipment, Inc., Hudson Waste Haulage, Inc., and Mt. Pleasant Sanitation, Inc.
Goodman Jacobs, New York, N.Y. (Sue C. Jacobs and Peter B. Bernier, Jr., of counsel), for respondent Federal Insurance Company.
Kelly Meenagh, Poughkeepsie, N.Y. (Thomas F. Kelly III of counsel), for defendant.
Before: CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, LEO F. McGINITY, HOWARD MILLER, JJ.
DECISION ORDER
In an action, inter alia, for a judgment declaring that the defendants AllCity Insurance Company and Empire Insurance Company are obligated to defend and indemnify the plaintiffs Mid-Hudson Equipment, Inc., Hudson Waste Haulage, Inc., and Mt. Pleasant Sanitation, Inc., in an underlying action entitled Ryan v. Mid-Hudson Equipment, Inc., et al., pending in the Supreme Court, Dutchess County, under Index No. 97/5110, AllCity Insurance Company and Empire Insurance Company appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Donovan J.), entered January 19, 2000, as denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them, and, upon searching the record, granted summary judgment on the issue of indemnification to the plaintiffs.
ORDERED that the order is modified by deleting the provision thereof granting summary judgment on the issue of indemnification and finding that the defendant Empire Insurance Company is obligated to indemnify the insureds in the underlying action; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
Although, in deciding the propriety of a motion for summary judgment, a court "may search the record and grant summary judgment to the non-moving party on any related claim" (A.C. Transp. v. Board of Educ. of City of N Y, 253 A.D.2d 330, 338; CPLR 3212[b]), the Supreme Court improperly granted summary judgment in this case. There are questions of fact regarding, inter alia, whether the plaintiffs Mid-Hudson Equipment, Inc., Hudson Waste Haulage, Inc., and Mt. Pleasant Sanitation, Inc., were employers of the decedent in the underlying action, which preclude the granting of summary judgment (see, Zuckerman v. City of New York, 49 N.Y.2d 557).
The appellants' remaining contentions are without merit.