| Diaz v Lexington Exclusive Corp. |
| 2009 NY Slip Op 01399 [59 AD3d 341] |
| February 26, 2009 |
| Appellate Division, First Department |
| Heidi Diaz et al., Plaintiffs, v Lexington Exclusive Corp.,Appellant, and Lillian Goldman et al., Respondents, et al., Defendants. Jane Goldman et al.,Third-Party Plaintiffs-Respondents, v Lexington Exclusive Corp., Third-PartyDefendant-Appellant. |
—[*1] Thomas D. Hughes, New York (Richard C. Rubenstein of counsel), forrespondents.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered September 26, 2008,which, to the extent appealed from, denied third-party defendant Lexington Exclusive Corp.'smotion for summary judgment dismissing the cross claims and third-party claim for contractualindemnification, unanimously reversed, on the law, with costs, the motion granted and suchclaims dismissed. The Clerk is directed to enter judgment accordingly.
The lease between the Goldman third-party plaintiffs, as landlord, and Lexington, as tenant,requires the latter to procure liability insurance for the former's benefit. The Goldmans, who hadobtained their own insurance as of the date of the subject accident, allege that Lexingtonbreached the lease's indemnification clause insofar as it provides that the tenant "shall indemnifyand save harmless Owner against and from all liabilities, obligations, damages, penalties, claims,costs and expenses for which Owner shall not be reimbursed by insurance." Lexington contendsthat the indemnification clause allows for the Goldmans' reimbursement under any insurancepolicy, including their own, in order for Lexington to be relieved of its contractual duty toindemnify. According to the Goldmans' construction of the clause, Lexington can be relieved ofthe duty to indemnify them only to the extent that it procures insurance for their benefit. In [*2]denying summary judgment, the IAS court found Lexington hadfailed to demonstrate that the lease unambiguously requires dismissal of the Goldmans'indemnification claim by reason of the fact that they have procured their own insurance. We findthe court's conclusion erroneous.
Contrary to the IAS court's finding, "reimbursed by insurance," as used above, means justthat, without regard to any specific source of coverage. "It is axiomatic that a contract is to beinterpreted so as to give effect to the intention of the parties as expressed in the unequivocallanguage employed" (Morlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16, 19[1961] [emphasis added]). Courts should not strain to find contractual ambiguities where they donot exist (Star City Sportswear vYasuda Fire & Mar. Ins. Co. of Am., 1 AD3d 58, 60 [2003], affd 2 NY3d 789[2004]). For example, in Arteaga v231/249 W 39 St. Corp. (45 AD3d 320 [2007]), this Court found no ambiguity in alease and dismissed a landlord's claim for indemnity under a provision that similarly obligatedthe tenant to indemnify the landlord solely for costs "for which Owner shall not be reimbursedby insurance" (see also Wilson v Haagen Dazs Co., 201 AD2d 361 [1994]). Werecognize that out-of-pocket expenses incurred in obtaining insurance are recoverable asdamages for breaches of agreements to procure insurance (see Inchaustegui v 666 5th Ave.Ltd. Partnership, 96 NY2d 111 [2001]). The Goldmans' brief, however, makes it clear thatthey are not seeking such damages. Concur—Andrias, J.P., Nardelli, Catterson, Acostaand DeGrasse, JJ.