| Bryde v CVS Pharmacy |
| 2009 NY Slip Op 03464 [61 AD3d 907] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Judith Bryde, Plaintiff, v CVS Pharmacy et al., Appellants,and Jato Building Contractors, Inc., Respondent. |
—[*1] White, Quinlan & Staley, LLP, Garden City, N.Y. (Eugene Patrick Devany of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants CVS Pharmacy, CVSPharmacy, Inc., and Greenlawn CVS, Inc., appeal, as limited by their brief, from so much of anorder of the Supreme Court, Suffolk County (R. Doyle, J.), entered September 20, 2007, asdenied that branch of their motion which was for summary judgment on their cross claims forcommon-law and contractual indemnification, and to recover damages for breach of contractagainst the defendant Jato Building Contractors, Inc.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2003 the defendant Jato Building Contractors, Inc. (hereinafter Jato), entered into aconstruction contract with the defendants CVS Pharmacy, CVS Pharmacy, Inc., and GreenlawnCVS, Inc. (hereinafter collectively CVS), pursuant to which Jato agreed to build a CVS store inGreenlawn. Among other things, the contract required Jato to obtain an insurance policy namingCVS as an additional insured, and included an indemnification clause, obligating Jato to "defend,indemnify and hold harmless CVS . . . from and against all claims, damages, lossesand expenses . . . arising out of or resulting from . . . any negligenceor tortious act or omission" on its part in the [*2]constructionprocess.
In 2005 the plaintiff commenced the instant action against CVS and Jato, alleging that shewas injured in a slip-and-fall accident caused by the negligent design and construction of ahandicapped access ramp outside the CVS store in Greenlawn. CVS asserted cross claimsagainst Jato seeking an apportionment of liability between the parties pursuant to CPLR 1403and 3019, to recover damages for breach of contract and for contribution, common-lawindemnification, and contractual indemnification. CVS moved, inter alia, for summary judgmenton the cross claims to recover damages for breach of contract and for common-law andcontractual indemnification, and Jato cross-moved for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it. The Supreme Court, among otherthings, denied CVS's motion. We affirm the order insofar as appealed from.
The Supreme Court properly denied that branch of CVS's motion which was for summaryjudgment on its cross claim for contractual indemnification against Jato, since CVS did notestablish, as a matter of law, that the plaintiff's accident resulted from a "negligent or wrongfulact or omission" on the part of Jato, as required by the defense and indemnification clause of itscontract with Jato (see Coque vWildflower Estates Devs., Inc., 31 AD3d 484, 489 [2006] [indemnification clauserequired proof of negligence "or wrongful act or omission"]; Rodriguez v Savoy Boro ParkAssoc. Ltd. Partnership, 304 AD2d 738, 739 [2003]; Edwards v International Bus.Machs. Corp., 174 AD2d 863, 864-865 [1991]; cf. Pope v Supreme-K.R.W. Constr.Corp., 261 AD2d 523 [1999] [indemnification clause did not require proof of negligence]).It would also have been premature for the court to have granted that branch of CVS's motionwhich was for summary judgment on so much of the contractual indemnification claim as soughtthe provision of a defense by Jato since Jato "is not an insurer and its duty to defend is nobroader than its duty to indemnify," which has yet to be established (Brasch v YonkersConstr. Co., 306 AD2d 508, 511 [2003]; see Rodriguez v Savoy Boro Park Assoc. Ltd.Partnership, 304 AD2d at 739; Cannavale v County of Westchester, 158 AD2d 645,646-647 [1990]).
Additionally, there are triable issues of fact which preclude an award of summary judgmentwith respect to the common-law indemnification claim, as CVS failed to establish "that nonegligent act or omission on its part contributed to the plaintiff's injuries, and that its liability istherefore purely vicarious" (Coque v Wildflower Estates Dev., Inc., 31 AD3d at 489; see Amit v Hineni Heritage Ctr., 49AD3d 574, 575 [2008]; PublicAdm'r of Kings County v 8 B.W., LLC, 40 AD3d 834, 835 [2007]; Medina v NewYork El. Co., 250 AD2d 656 [1998]; La Lima v Epstein, 143 AD2d 886, 888[1988]).
Additionally, "[a] party seeking summary judgment based on an alleged failure to procureinsurance naming that party as an additional insured must demonstrate that a contract provisionrequired that such insurance be procured and that the provision was not complied with"(Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d at 739; seeMcGill v Polytechnic Univ., 235 AD2d 400, 402 [1997]). Since CVS failed to demonstratethat Jato breached the insurance procurement clause, the court did not err in denying that branchof CVS's motion which was for summary judgment on that cross claim (see Kinney v LiskCo., 76 NY2d 215, 218 [1990]; Lima v NAB Constr. Corp., 59 AD3d 395 [2009]; Kwang HoKim v D & W Shin Realty Corp., 47 AD3d 616, 620 [2008]). Dillon, J.P., Balkin, Belen andChambers, JJ., concur. [See 2007 NY Slip Op 32930(U).]