Opinion
March 17, 1995
Appeal from the Supreme Court, Oneida County, Shaheen, J.
Present — Denman, P.J., Green, Fallon, Balio and Boehm, JJ.
Appeal by plaintiffs unanimously dismissed without costs (see, Matter of Laborers Intl. Union v. Shevlin-Manning, Inc., 147 A.D.2d 977) and order insofar as appealed from by third-party plaintiff modified on the law and as modified affirmed with costs to third-party plaintiff in accordance with the following Memorandum: Third-party defendant, Esquire Motels, Inc. (Esquire Motels), breached its lease with third-party plaintiff, Oneida Horizon Redevelopment Corp. (Oneida Horizon), by failing to procure insurance coverage on behalf of Oneida Horizon. The contention of Esquire Motels that the lease did not require it to procure a comprehensive general liability policy with Oneida Horizon named as an additional insured is devoid of merit. The lease identifies Oneida Horizon as "landlord" and requires Esquire Motels to name as additional insureds "landlord, Oneida County Industrial Development Agency and Hayes National Bank".
Esquire Motels failed to preserve for review the contention that Oneida Horizon waived its right to enforce the breach by failing to take action upon receipt of the certificate of insurance revealing that Oneida Horizon was not named as an additional insured (see, Gordon v. Gordon, 210 A.D.2d 929; 1-900-Autofax, Inc. v. Niagara Frontier Auto. Dealers Assn., 209 A.D.2d 1016).
Because Esquire Motels breached its agreement to procure insurance covering Oneida Horizon, it is liable for the resulting damages, which include the litigation costs and expenses of defending plaintiffs' action against Oneida Horizon (see, Kinney v. Lisk Co., 76 N.Y.2d 215, 219; Roblee v. Corning Community Coll., 134 A.D.2d 803, 805, lv denied 72 N.Y.2d 803; Broquedis v Employers Mut. Liab. Ins. Co., 45 A.D.2d 591, 596; cf., Robinson v. Janay, 105 N.J. Super. 585, 591-592, 253 A.2d 816, 819-820, certification denied 54 N.J. 508, 257 A.2d 107). Dismissal of plaintiffs' action against Oneida Horizon did not render moot Esquire Motel's liability for the litigation costs and expenses incurred by Oneida Horizon prior to dismissal of that action. Thus, Supreme Court erred in denying Oneida Horizon's motion to the extent it sought summary judgment that Esquire Motels is liable for those litigation costs and expenses.