| Kermanshah Oriental Rugs, Inc. v Gollender |
| 2008 NY Slip Op 00166 [47 AD3d 438] |
| January 10, 2008 |
| Appellate Division, First Department |
| Kermanshah Oriental Rugs, Inc., Plaintiff, v MichaelGollender et al., Defendants, P.C. Richard & Son, LLC, et al., Appellants, and Spirit Delivery &Distribution Services, Inc., et al., Respondents. The Sompo Japan Insurance Company ofAmerica, as Subrogee of Kermanshah Oriental Rugs, Inc., Plaintiff, v Shireweil, Inc., et al.,Defendants, P.C. Richard & Son, LLC, et al., Appellants, and Spirit Delivery & DistributionServices, Inc., et al., Respondents. |
—[*1] Fabiani Cohen & Hall, LLP, New York City (Joseph J. Rava of counsel), forrespondents.
Orders, Supreme Court, New York County (Louis B. York, J.), entered November 3 and 24,2006, which, to the extent appealed from as limited by the briefs, dismissed defendant P.C. [*2]Richard's cross claims (formerly third-party claims) againstdefendants Spirit Delivery & Distribution Services, DeMoura and Rolim & Santos HomeDelivery Co., unanimously modified, on the law, those cross claims reinstated and summaryjudgment granted to P.C. Richard on its cross motion and motion therefor, and otherwiseaffirmed, without costs, and the matters remanded for further proceedings in accordanceherewith. Appeals from orders, same court and Justice, entered February 23, May 25 and May 31,2006, unanimously dismissed, without costs, as superseded by appeals from the November 2006orders.
Plaintiff Kermanshah, the operator of a retail establishment involved in buying and sellingoriental rugs, purportedly sustained damage to its property as a result of a water leak. Eventhough Kermanshah alleged that the leak had been caused by the installation of a washingmachine by tenants in the building, it sued not only those tenants but also the owner of thebuilding, the retail seller of the appliance (P.C. Richard), and the entities responsible for itsdelivery and installation (collectively referred to as the Spirit defendants). After Kermanshahrecovered payment for its loss from its insurer, Sompo Japan Insurance Company, the latterbrought suit against the same defendants for recovery. In addition to dismissing summarily thecomplaints and all cross claims against P.C. Richard and the Spirit defendants, the court alsodismissed P.C. Richard's cross claims and denied its requests for summary judgment forcontractual indemnification and for damages for the Spirit defendants' failure to obtain requiredinsurance.
Pursuant to its agreement with the retailer, Spirit was required to "indemnify and hold P.C.harmless from any claim or loss to persons or property which is alleged to be caused by, or inconnection with Spirit's performance of its duties under this Agreement, including all cost relatedthereto, and including attorney's fees and court costs." Paragraph 10 of the agreement furtherrequired Spirit to obtain insurance on behalf of P.C. Richard. Furthermore, under its subcontractwith Spirit, defendant Rolim & Santos Home Delivery Co. agreed to indemnify any of Spirit'sclients against "any and all losses, suits, actions, debts, claims, demands, damages" due to "anynegligence, act, or omission of" Rolim & Santos.
The court found no indication of any negligence on P.C. Richard's part, thus entitling it tocontractual indemnification from Spirit and, as a client thereof, also from Rolim & Santos(see Brown v Two Exch. Plaza Partners, 76 NY2d 172 [1990]). As for Spirit's agreementto procure insurance on behalf of P.C. Richard, while it is undisputed that the Spirit defendantsattached a certificate of insurance to their opposition papers, a "certificate of insurance is onlyevidence of a carrier's intent to provide coverage but is not a contract to insure the designatedparty nor is it conclusive proof, standing alone, that such a contract exists" (Tribeca Broadway Assoc. v Mount VernonFire Ins. Co., 5 AD3d 198, 200 [2004]). Spirit has not challenged P.C. Richard's claimthat such insurance was never actually obtained.
Spirit's arguments of lack of privity with the cross claimants as denominated herein and theapplicability of New Jersey law in construing this contractual provision are raised for the first[*3]time on appeal, and thus have not been preserved for ourreview. Were we to consider these arguments, we would find them without merit.Concur—Tom, J.P., Saxe, Friedman and Williams, JJ.