| Inner City Redevelopment Corp. v Thyssenkrupp El. Corp. |
| 2010 NY Slip Op 08798 [78 AD3d 613] |
| November 30, 2010 |
| Appellate Division, First Department |
| Inner City Redevelopment Corp., Respondent, v ThyssenkruppElevator Corporation, Appellant, et al., Defendant. |
—[*1] Barry, McTiernan & Moore, New York (David H. Schultz of counsel) for respondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 9, 2010, which,upon reargument, adhered to the original determination granting plaintiff's motion for summary judgmentdeclaring that defendant Thyssenkrupp has a duty to defend plaintiff in the underlying personal injuryaction and in addition declared that said defendant is obligated to indemnify plaintiff for up to $1.25million, unanimously affirmed, with costs.
As defendant Thyssenkrupp is not an insurer, its duty to defend its contractual indemnitee is nobroader than its duty to indemnify (Bellefleurv Newark Beth Israel Med. Ctr., 66 AD3d 807, 809 [2009]). The contract limits theindemnity to losses caused in whole or in part by defendant's negligence. Because there has been noshowing that defendant was negligent, any order requiring defendant to defend or indemnify ispremature (see Francescon v Gucci Am.,Inc., 71 AD3d 528 [2010]).
However, the contract contains a promise by defendant not only to indemnify, but also to procureinsurance that fully covers the scope of the indemnity. The policy that defendant obtained, in the correctface amount, has a $1.25 million deductible. Thus, defendant is obligated to defend and indemnify forany covered liability within the deductible, i.e., up to $1.25 million (see Hoverson v Herbert Constr.Co., 283 AD2d 237, 238 [2001]).
Nor does plaintiff's failure to comply with the notice provisions of the insurance policy provide adefense. Defendant's contractual obligation is separate and distinct from the insurer's obligations underthe policy (Singh v New York City Tr.Auth., 17 AD3d 262, 263-264 [2005]). In any event, the amount of the claim is within thedeductible. Concur—Tom, J.P., Saxe, Friedman, Sweeny and Abdus-Salaam, JJ.