Paul Tishman Co. v. Carney & Del Guidice, Inc.

CourtNew York Supreme Court Appellate Division
Citation36 A.D.2d 273,320 N.Y.S.2d 396
PartiesPAUL TISHMAN COMPANY, Inc., Plaintiff-Respondent, v. CARNEY & DEL GUIDICE, INC., Defendant-Appellant.
Decision Date20 April 1971

Page 396

320 N.Y.S.2d 396
36 A.D.2d 273
PAUL TISHMAN COMPANY, Inc., Plaintiff-Respondent,
CARNEY & DEL GUIDICE, INC., Defendant-Appellant.
Supreme Court, Appellate Division, First Department.
April 20, 1971.

John Nielsen, New York City, of counsel (Craig & Geen, New York City, attorneys), for defendant-appellant.

Milton B. Pfeffer, New York City, of counsel (Gwertzman, Sessler, Nagelberg, Goldstein & Pfeffer, New York City, attorneys), for plaintiff-respondent.



The action, though not so in name, is in subrogation by insurers who have paid a loss. The loss was occasioned by a fire in a building under construction. Recover over is sought against a subcontractor on grounds of negligence and an agreement to indemnify. The defendant moved for summary judgment dismissing the complaint on the ground that it was itself an insured under the contracts of insurance. The motion was granted in the Civil Court but the order was reversed in the Appellate Term. The matter is before us by permission granted by this Court.

Page 397

We agree with the determination made by the Appellate Term. The dissent raises and demolishes an issue not presented in the case, namely, whether the defendant had an insurable interest. The policies in question included as assureds the defendant as [36 A.D.2d 274] well as other subcontractors. The policies, however, insured only the structure for loss by fire or other included risk. These policies did not insure the assureds against liability to others. Had this been the coverage of the policies, the defendant would have been protected and the cases cited in the dissent would have had application. Of course, as quoted in the dissent: '* * * a person may insure against his liability with reference to a certain property as well as his interest therein' (Berry v. A.C. Ins. Co., 132 N.Y. 49, 56, 30 N.E. 254, 255). But here he did not do so. What the defendant here seeks to assert is that because he is insured against any damage to whatever interest he may have had in the property, he is also insured for any damage he may have done to property in which he had no interest. It may clarify the situation to point out that if the fire destroyed work that defendant had done and by virtue of it defendant, on account of contract, could not recover the value of the work or was required to do it over again, that would be an interest in the physical property. However, no such state of facts was presented and at this stage of the proceedings does not appear.

The order of the Appellate Term entered June 16, 1970, reversing order of the Civil Court should be affirmed with costs to the respondent.

Determination of the Appellate Term of the Supreme Court, First Judicial Department, entered on June 16, 1970, affirmed. Respondent shall recover of appellant $50 costs and disbursements of this appeal.

All concur except CAPOZZOLI, J., who dissents in an Opinion.

CAPOZZOLI, Justice (dissenting):

By permission granted, defendant appeals from a determination of the Appellate Term, New York County, reversing an order of the Civil Court, New York County, which had granted defendant's motion for summary judgment and dismissed the complaint.

This action was commenced to recover damages for breach of contract and negligence on a claim arising out of the performance of a contract entered into, pursuant to which the defendant was to perform the plastering work in connection with the erection of certain houses for the New York City Housing Authority. Plaintiff was the general contractor and the defendant a sub-contractor.

Under the agreement between the parties the defendant had agreed to indemnify the plaintiff in connection with any damage which occurred in the course of the work called for under the sub-contract, as the result of defendant's neglect in the performance of same. It is claimed that,...

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