Durant v. State

• Decision Date: 16 June 2021
• Docket Number: Claim No. 124365,2018–08464
• Citation: 145 N.Y.S.3d 816 (Mem),195 A.D.3d 796
• Parties: Jeremiah DURANT, claimant, v. STATE of New York, defendant third-party claimant-respondent; United Educators Insurance Company, third-party defendant-appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 796

145 N.Y.S.3d 816 (Mem)

Jeremiah DURANT, claimant,

v. STATE of New York, defendant third-party claimant-respondent;United Educators Insurance Company, third-party defendant-appellant.

2018–08464

Claim No. 124365

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

Argued—March 1, 2021

June 16, 2021

Cornell Grace, P.C., New York, N.Y. (Keith D. Grace and Adeel Jamaluddin of counsel), for third-party defendant-appellant.

Letitia James, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Matthew W. Grieco of counsel), for defendant third-party claimant-respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

In a claim to recover damages for personal injuries, the third-party defendant appeals from an order of the Court of Claims (Stephen J. Lynch, J.), entered May 9, 2018. The order denied the motion of the third-party defendant for summary judgment declaring that it is not obligated to defend or indemnify the defendant third-party claimant in the main claim, and granted the cross motion of the defendant third-party claimant for summary judgment declaring that the third-party defendant is obligated to defend it in the main claim.

ORDERED that the order is affirmed, with costs.

In March 2005, the New York Institute of Technology (hereinafter NYIT) and the State University of New York (hereinafter SUNY) entered into a revocable permit agreement whereby NYIT leased five buildings on SUNY's Old Westbury campus in order to house its students. Pursuant to paragraph 18 of the revocable permit, NYIT agreed to be responsible for injuries arising from the use of the facilities, its appurtenances, and the surrounding grounds, and pursuant to paragraph III of exhibit D to the revocable permit, NYIT agreed to be responsible for injuries arising out of or in connection with its students "residing at The College." In addition, paragraph 19 of the revocable permit obligated NYIT to provide insurance protection for the benefit of the State of New York with limits of not less than $3 million for bodily injuries arising out of the execution of the revocable permit. NYIT obtained a primary general liability insurance policy from United Educators Insurance Company (hereinafter United).

In May 2011, the claimant, a student of NYIT, was injured when he stepped into a hole next to a manhole, and in 2014, he commenced this claim against the State to recover damages for personal injuries. In turn, the State commenced a third-party claim against United seeking a judgment declaring that United is obligated to defend and indemnify it for the acts complained of in the main claim. In an order entered May 9, 2018, the Court of Claims denied United's motion for summary...