50 New Walden, Inc. v. Federal Ins. Co.
| Decision Date | 22 October 1964 |
| Citation | 22 A.D.2d 4,253 N.Y.S.2d 383 |
| Court | New York Supreme Court — Appellate Division |
| Parties | 50 NEW WALDEN, INC., and Thruway Lanes, Inc., Plaintiffs, v. FEDERAL INSURANCE CO. et al., Appellants, and Cartwright & Morrison, Inc. and Frank J. Cartwright, Respondents. 50 NEW WALDEN, INC., and Thruway Lanes, Inc., Plaintiffs, v. FEDERAL INSURANCE CO. et al., Appellants, and Cassiol Construction Company, Inc., Respondent. 50 NEW WALDEN, INC., and Thruway Lanes, Inc., Plaintiffs, v. FEDERAL INSURANCE CO. et al., Appellants, and Milton Milstein, Respondent. |
Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, for appellant Insurance Companies; Hugh McM. Russ, Jr., Buffalo, of counsel.
Adams, Brown, Starrett & Maloney, Buffalo, for respondents Cartwright & Morrison, Inc., and Frank J. Cartwright; Howard H. Starrett, Buffalo, of counsel.
Miles, Cochrane, Grosse, Rossetti & Lord, Buffalo, for respondent Cassiol Const. Co.; Stephen R. Cochrane, Buffalo, of counsel.
Vaughan, Brown, Kelly, Turner & Symons, Buffalo, for respondent Milstein; William D. Hassett, Buffalo, of counsel.
Before WILLIAMS, P. J., and BASTOW, HENRY, NOONAN and DEL VECCHIO, JJ.
These are appeals by the insurance company defendants from three separate orders dismissing cross claims alleged in an amended answer. The plaintiff, by their amended complaint, allege that on February 19, 1960, they were the owners and occupants of premises known as 1550 Walden Avenue, Town of Cheektowaga, Erie County. It is also alleged that on that date damage was caused to the building by windstorm. The insurance company defendants had issued various policies to the plaintiffs, which were in effect on the date of the claimed loss, insuring against loss for direct damage by windstorm and loss resulting from business interruption caused by wind damage. The plaintiffs seek damages under these policies from the insurance company defendants. These defendants deny the damage was caused to the plaintiffs' building by windstorm. The plaintiffs also, in the 'Sixth' and 'Seventh' causes of action in the amended complaint, seek damages from the architect and general contractor for breach of contract based on alleged negligent performance. In the 'Eighth' cause of action, damages for negligence are sought from the designers and fabricators of the roof of the building selected by the general Contractor. The insurance company defendants in the amended answer have cross-claimed against these defendants in separate cross claims seeking reimbursement if judgment is rendered against them '* * * if it is found also, as a result of said judgment, the said occurrence was caused or contributed to by the negligence or fault of the defendant * * *.'
As in Lenzner Corp. v. Aetna Casualty & Surety Company, 20 A.D.2d 305, 246 N.Y.S.2d 950, we are again confronted with the contention of the moving defendants that the decision in Ross v. Pawtucket Mut. Ins. Co., 13 N.Y.2d 233, 246 N.Y.S.2d 213, 195 N.E.2d 892, is dispositive of this appeal, thus requiring the dismissal of the claims over, and Special Term has so found. Again we disagree. In Ross, supra, plaintiff sued his collision insurance carrier to recover damage to his automobile. The driver and owner of another vehicle were served with a third party complaint by the collision carrier. It we alleged that it was the negligence of these third party defendants that caused the collision. The narrow issue was whether an...
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Felice v. St. Agnes Hospital
...of action does not accrue until the person to be indemnified has actually lost something, i. e., paid something (50 New Walden v. Federal Ins. Co., 22 A.D.2d 4, 253 N.Y.S.2d 383). With respect to the hospital's admission obtained by the three physicians pursuant to CPLR 3123, the law is set......
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Vander Veer v. Tyrrell
...of the main action, and an indemnity cross claim is available even against a contention that it is premature (50 New Walden, Inc. v. Federal Ins. Co., 22 A.D.2d 4, 253 N.Y.S.2d 383; 5 Carmody-Wait 2d, New York Practice, § 30.78, p. 683). Not only is there a reluctance, therefore, to dismiss......
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Krause v. American Guarantee & Liability Ins. Co.
...the Appellate Division's analysis of Ross would seem correct. (Lenzner Corp. v. Aetna Cas. & Sur. Co., supra; 50 New Walden v. Federal Ins. Co., 22 A.D.2d 4, 253 N.Y.S.2d 383.) Still, Ross also rests on the broader ground that impleader should not be allowed to an insurer whose claim is bas......
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Krause v. American Guarantee & Liability Ins. Co.
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