Hous. Cas. Co. v. Cavan Corp. of NY, Inc.

• Decision Date: 20 February 2018
• Docket Number: Index 651981/14 ,4718 ,4719 ,595609/14
• Citation: 158 A.D.3d 536,71 N.Y.S.3d 455
• Parties: HOUSTON CASUALTY COMPANY, Plaintiff–Respondent–Appellant, v. CAVAN CORPORATION OF NY, INC., et al., Defendants–Appellants–Respondents. Cavan Corporation of NY, Inc., Third–Party Plaintiff–Appellant–Respondent, v. The Ducey Agency, Inc., Third–Party Defendant–Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 536
71 N.Y.S.3d 455

HOUSTON CASUALTY COMPANY, Plaintiff–Respondent–Appellant,
v.
CAVAN CORPORATION OF NY, INC., et al., Defendants–Appellants–Respondents.

Cavan Corporation of NY, Inc., Third–Party Plaintiff–Appellant–Respondent,
v.
The Ducey Agency, Inc., Third–Party Defendant–Appellant–Respondent.

4718
4719
Index 651981/14
595609/14

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

ENTERED: FEBRUARY 20, 2018

Wilkofsky, Friedman, Karel & Cummins, New York (Mark L. Friedman of counsel), for Cavan Corporation of NY, Inc., appellant-respondent.

Ahmuty, Demers, & McManus, Albertson (William J. Mitchell of counsel), for New Puck, LLC, Puck Residential Associates, LLC and Kushner Companies, LLC, appellants-respondents.

Keidel, Weldon & Cunningham, LLP, White Plains (Howard S. Kronberg of counsel), for the Ducey Agency, Inc., appellant-respondent.

DLA Piper LLP (US), New York (Aidan M. McCormack of counsel), for respondent-appellant.

Acosta, P.J., Friedman, Webber, Oing, Moulton, JJ.

158 A.D.3d 536

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about August 12, 2016, which, to the extent appealed from as limited by the briefs, denied the motion by third-party defendant the Ducey Agency, Inc. (Ducey) and the cross motion by defendant Cavan Corporation of New York, Inc. (Cavan) for summary judgment declaring that plaintiff has a duty to defend Cavan in an underlying personal injury action, and denied plaintiff's cross motion for summary judgment declaring that it has no such duty to defend Cavan, unanimously modified, on the law, to grant plaintiff's cross motion and to declare that plaintiff has no duty to defend Cavan

158 A.D.3d 537

in the underlying personal injury action, and otherwise affirmed, without costs.

In July 2012, Cavan entered into a "Construction Management Agreement" (CMA) with the other defendants in this action (the owners), under which Cavan agreed to function as "construction manager" for a building project on Lafayette Street in Manhattan. The CMA provides that Cavan is to receive compensation in the form of a fixed fee of $600,000, in addition to a payment of $1,700,000 as reimbursement "for all reasonable and customary staffing and overhead costs incurred by [Cavan] in the performance of its duties hereunder." In October 2013, the principal of the project's sidewalk restoration contractor was injured in the course of the work and subsequently commenced the underlying personal injury action against Cavan, the owners and another entity. The complaint in the underlying action alleges that Cavan had been engaged as "the general...