Kings Park Industries, Inc. v. Affiliated Agency, Inc.

• Decision Date: 03 October 2005
• Docket Number: 2005-00236.,2005-00237.
• Citation: 2005 NY Slip Op 07349,802 N.Y.S.2d 202,22 A.D.3d 466
• Parties: KINGS PARK INDUSTRIES, INC., Respondent-Appellant, v. AFFILIATED AGENCY, INC., Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

22 A.D.3d 466

802 N.Y.S.2d 202

2005 NY Slip Op 07349

KINGS PARK INDUSTRIES, INC., Respondent-Appellant, v. AFFILIATED AGENCY, INC., Appellant-Respondent.

2005-00236.

2005-00237.

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 3, 2005.

In an action, inter alia, to recover damages for breach of contract and for declaratory relief, (1) the defendant appeals (a) from a decision of the Supreme Court, Nassau County (McCarty, J.), dated October 4, 2004, and (b), as limited by its brief, from so much of an order and judgment (one paper) of the same court entered November 22, 2004, as, upon denying that branch of its motion which was to dismiss the third cause of action and granting the plaintiff's cross motion for summary judgment on that cause of action, is in favor of the plaintiff and against it on that cause of action, and declared that it is obligated to hold harmless and indemnify the plaintiff for any loss it may sustain

by reason of the absence of certain excess insurance coverage, and (2) the plaintiff cross-appeals from (a) the decision dated October 4, 2004, and (b) so much of the order and judgment (one paper) entered November 22, 2004, as, upon granting those branches of the defendant's motion which were to dismiss the first and second causes of action, dismissed those causes of action.

Ordered that the appeal and cross appeal from the decision dated October 4, 2004, are dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,

Ordered that the order and judgment entered November 22, 2004, is reversed, on the law, without costs or disbursements, those branches of the motion which were to dismiss the first and second causes of action are denied, the branch of the motion which was to dismiss the third cause of action is granted, the cross motion is denied, the third cause of action is dismissed, and the first and second causes of action are reinstated.

The plaintiff commenced this action against the defendant insurance broker after discovering that the defendant failed to procure an excess liability policy for which the plaintiff had contracted and paid a premium. The first two causes of action sought recovery of the premium under negligence and breach of contract theories, while the third cause of action sought a declaration that the defendant was obligated to indemnify the plaintiff for any...