Opinion
May 17, 1993
Appeal from the Supreme Court, Kings County (Ramirez, J.).
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted the defendant-respondent's motion for summary judgment. The defendant-appellant did not deny that it failed to comply with the provision of the contract requiring it to obtain liability insurance naming the defendant-respondent as the insured. The defendant-appellant is therefore liable to indemnify the defendant-respondent for any payments made by the latter to the plaintiffs in this action (see, Kinney v Lisk Co., 76 N.Y.2d 215).
The provision of the contract reserving the defendant-respondent's right to procure liability insurance at the defendant-appellant's expense should not be read as imposing a duty on the defendant-respondent to do so, since such would be inconsistent with the clear language of the contract (see, Sutton v East Riv. Sav. Bank, 55 N.Y.2d 550, 555). Moreover, contrary to the defendant-appellant's contentions, the defendant-respondent was under no duty to mitigate damages by procuring such insurance (cf., Tynan Incinerator Co. v International Fid. Ins. Co., 117 A.D.2d 796, 797-798). In addition, the defendant-appellant's allegations that the defendant-respondent waived its rights under the contract were unsubstantiated and speculative and therefore were insufficient to require the denial of the defendant-respondent's motion for summary judgment (see, Zuckerman v City of New York, 49 N.Y.2d 557, 562; Jones v Gameray, 153 A.D.2d 550, 551; Kennerly v Campbell Chain Co., 133 A.D.2d 669, 670). Miller, J.P., O'Brien, Copertino and Joy, JJ., concur.