Keats v. Moss

• Decision Date: 05 April 1957
• Citation: 161 N.Y.S.2d 353,5 Misc.2d 571
• Parties: Sidney KEATS, Plaintiff, v. Carl MOSS and George P. Mechwart, individually and formerly copartners, doing business as Master Economy Housecraft, Defendants, and Carl MOSS, Third Party Plaintiff, v. The EMPLOYERS LIABILITY ASSURANCE CORP., Ltd., Third Party Defendant.
• Court: New York City Municipal Court

Page 353

161 N.Y.S.2d 353

5 Misc.2d 571

Sidney KEATS, Plaintiff, v. Carl MOSS and George P. Mechwart, individually and formerly

copartners, doing business as Master Economy

Housecraft, Defendants, and Carl MOSS, Third Party Plaintiff, v. The EMPLOYERS LIABILITY ASSURANCE CORP., Ltd., Third Party Defendant.

Municipal Court of City of New York, Borough of Manhattan,

First District.

April 5, 1957.

Sidney Keats, New York City, in pro. per., plaintiff.

Carl Moss, in pro. per., defendant and third-party plaintiff.

Hampton & Dietel, New York City, for third-party defendant, by Anthony M. Lanzone, New York City, of counsel.

BOCCIA, Justice.

This case was tried before this court and a jury on March 20th and 21st, 1957. At the conclusion of the trial all of the parties moved for directed verdicts in their respective favors. After the court had questioned each of the parties as to whether they desired to have the court determine all of the issues of law and of fact with the same force and effect as if the jury had made such determination, all of the parties consented that all of the issues of law and fact be determined by this court with the same force and effect as if the jury had rendered a verdict. Accordingly, this court feels that a proper disposition of this matter calls for an analysis of the law and of the facts.

In this case, plaintiff, a lawyer sues to recover the sum of $500 from the defendant for professional services rendered and disbursements incurred in connection with the defense of an action wherein Moss, the present defendant, was named as a third party defendant in an action instituted in the Supreme Court, Nassau County.

No substantial dispute exists among the parties as to whether the plaintiff is entitled to the counsel fee and disbursements in the sum of $500. The material question posed by the parties is the third party action instituted by Carl Moss against the Employers Liability Assurance Corp., Ltd., hereinafter referred to as 'Employers,' wherein Moss seeks a judgment over against Employers for the amount of any judgment rendered against him and in favor of the plaintiff.

Analyzing the testimony adduced by the parties upon the trial of this action, this court finds as a fact that Moss was engaged in doing certain roofing work at premises 2 West Park Avenue, Long Beach, New York, which work commenced in June 1952 and continued until January 1953. Moss had left various supplies at the said premises. The policy issued by Employers protected Moss against 'any suit against the insured alleging such injury * * * and seeking damages on account thereof even though such suit is groundless, false or fraudulent' (II(a)). Employers agreed to pay on behalf of the insured all sums which the insured (Moss) became legally obligated to pay and which was sustained by any person and caused by accident (I Coverage B). Employers likewise agreed (Insurance Policy Par. II 9(c)) to reimburse the insured for all reasonable expenses. The policy did not include operations of the insured where the same had been completed ((f) Products Hazard (2)) and specifically excepted from such exclusion '(b) the existence of tools, uninstalled equipment and abandoned or unused materials,' at any place of work.

In this case, the preponderance of the evidence convinced the court that Moss had left various materials on the job for the purpose of completing the same and that while such materials were on the job the plaintiff in the Supreme Court Nassau County action (George DeMaio) sustained injuries which the defendant and third party plaintiff claimed in its third party complaint and bill of particulars were caused 'solely by reason of the active and primary negligence and carelessness, both of omission and commission, on the part of third-party defendant in that if parts of the roof were in a defective and dangerous and unsafe condition, which caused water to seep through and to leak into the building upon the landing of said stairway during stormy and inclement weather * * * such acts and omissions to act were solely the acts and omissions of third-party defendant, and constituted active and primary negligence on its part and further constituted a breach of its said agreement with third-party plaintiff' (Par. 9--third-party-plaintiff complaint).

None of this testimony was refuted by Employers. Thus, these facts come squarely within the ruling of Goldberg v. Lumber Mutual Casualty Ins. Co., 297 N.Y. 148, 77 N.E.2d 131, 133. That case is decisive of the facts at bar. In that case, Judge Fuld, speaking for the Court of Appeals, in construing the language of the insurance policy, which is virtually similar to the one at bar, stated:

'In the clearest of terms, the insurer obligated itself to handle the defense of actions against the insured whenever the complaint served upon him alleged a state of facts covered by the policy, regardless of whether such allegations squared with objective truth or were utterly false and groundless. As previously noted, the company's obligation was to 'defend in the name of and on behalf of the insured any suit against the insured alleging such injury and seeking damages on account thereof, even if such suit is groundless, false or fraudulent.''

Examining the pleadings of the Nassau County Supreme Court action we find that the claim made there against Moss is so vague insofar as the time when he was working at the premises is concerned that it became incumbent upon Employers to actually defend Moss in order to ascertain the manner and extent of liability on the part of Moss for the work that he had either done at the premises or was in the process of doing and, accordingly, I find Employers...