Opinion
April 23, 1998
Appeal from the Supreme Court, New York County (Emily Goodman, J.).
Contrary to the finding of the motion court, Fifty CPW's cause of action and Flynn's cross-claim based on breach of an agreement to procure insurance coverage accrued at the time that R L failed to procure such insurance, and are therefore time-barred ( see, Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402; T N PLC v. James Co., 29 F.3d 57; General Conference of Seventh-Day Adventists v. AON Reins. Agency, 826 F. Supp. 107).
Nonetheless, Fifty CPW's and Flynn's claims for contractual indemnification are timely ( see, McDermott v. City of New York, 50 N.Y.2d 211, 216; Office of Irwin G. Cantor, P.C. v. Swanke Hayden Connell Partners, 186 A.D.2d 71, 71-72), and the motion court properly determined that Flynn was an intended, express third-party beneficiary of the indemnification provision in the contract between R L and Fifty CPW ( see, Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 43-45; Clapper v. County of Albany, 188 A.D.2d 774, 776-777; Gordon Co. v. Blodnick, Schultz Abramowitz, 150 A.D.2d 212, lv denied 74 N.Y.2d 613).
Finally, since it has not yet been proven that neither Fifty CPW nor Flynn was negligent, the motion court properly denied R L's motion for summary judgment, which was based on a claim that the indemnification provision violates General Obligations Law § 5-322.1 ( see, Novak v. BASF Corp., 869 F. Supp. 113; Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 179; Connolly v. Brooklyn Union Gas Co., 168 A.D.2d 477, lv denied 78 N.Y.2d 864; see also, Conley v. Salt City Energy Venture, 234 A.D.2d 909).
The motion court erred, however, in granting summary judgment to Fifty CPW and Flynn on their claims for contractual indemnification, because the issue of whether the parties were negligent still awaits determination by a jury ( see, Velez v. Tishman Foley Partners, 245 A.D.2d 155).
Concur — Rosenberger, J.P., Ellerin, Nardelli and Rubin, JJ.