Bd. of Educ. of Solvay Union Free Sch. Dist. v. J.D. Taylor Constr. Corp.

• Decision Date: 16 March 2012
• Parties: BOARD OF EDUCATION OF SOLVAY UNION FREE SCHOOL DISTRICT, Plaintiff–Respondent, v. J.D. TAYLOR CONSTRUCTION CORPORATION, Turner Construction Company, Defendants–Respondents,andQPK Design, Defendant–Appellant.J.D. Taylor Construction Corporation, Third–Party Plaintiff, v. Damaco Window Contractors, Inc., Third–Party Defendant–Respondent,andKalwall Corporation, Third–Party Defendant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01916

93 A.D.3d 1191

941 N.Y.S.2d 897

BOARD OF EDUCATION OF SOLVAY UNION FREE SCHOOL DISTRICT, Plaintiff–Respondent,

v.J.D. TAYLOR CONSTRUCTION CORPORATION, Turner Construction Company, Defendants–Respondents,andQPK Design, Defendant–Appellant.J.D. Taylor Construction Corporation, Third–Party Plaintiff,

v.Damaco Window Contractors, Inc., Third–Party Defendant–Respondent,andKalwall Corporation, Third–Party Defendant.

Supreme Court, Appellate Division, Fourth Department, New York.

March 16, 2012.

Appeal from an order of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.), entered May 9, 2011. The order, among other things, denied the motion of defendant QPK Design for summary judgment.Sugarman Law Firm, LLP, Syracuse (Matthew D. Gumaer of Counsel), for defendant-appellant.

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., East Syracuse (Katherine E. Gavett of Counsel), for plaintiff-respondent.

Sheats & Associates, P.C., Brewerton (Jason B. Bailey Of Counsel), for defendant-respondent J.D. Taylor Construction Corporation.Goldberg Segalla LLP, Syracuse (Kenneth M. Alweis of Counsel), for defendant-respondent Turner Construction Company.MEMORANDUM:

We conclude that Supreme Court erred in denying those parts of defendant QPK Design's motion for summary judgment dismissing the third and fourth cross claims of defendant Turner Construction Company against it, for contractual indemnification and breach of contract based on QPK Design's failure to procure the requisite insurance ( cf. DiBuono v. Abbey, LLC, 83 A.D.3d 650, 652–653, 922 N.Y.S.2d 101; Gillmore v. Duke/Fluor Daniel, 221 A.D.2d 938, 939, 634 N.Y.S.2d 588; see generally A & E Stores, Inc. v. U.S. Team, Inc., 63 A.D.3d 486, 880 N.Y.S.2d 634). We therefore modify the order accordingly. We reject the remaining contentions of QPK Design for reasons stated by the court in its bench decision.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting those parts of defendant QPK Design's motion for summary judgment dismissing the third and fourth cross claims of defendant Turner Construction Company against it and as modified the order is affirmed without costs.

SCUDDER, P.J., SMITH, FAHEY, CARNI, and SCONIERS, JJ., concur.