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

• Decision Date: 20 April 1971
• Citation: 36 A.D.2d 273,320 N.Y.S.2d 396
• Parties: PAUL TISHMAN COMPANY, Inc., Plaintiff-Respondent, v. CARNEY & DEL GUIDICE, INC., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 396

320 N.Y.S.2d 396

36 A.D.2d 273

PAUL TISHMAN COMPANY, Inc., Plaintiff-Respondent, v. 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.

Before STEVENS, P.J., and CAPOZZOLI, MARKEWICH, KUPFERMAN and STEUER, JJ.

PER CURIAM:

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.

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 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, during the course of the work, a fire and explosion occurred in one of the buildings, allegedly attributable to the negligence of the defendant.

At the time of the fire there were two policies of fire insurance in effect, known as 'Builders' Risk Policies', one issued by Royal Indemnity Company and the other by U.S. Fire Insurance Company, according to which each insurer undertook to pay 50% Of the loss. The named insured in each of these two policies was 'Paul Tishman Company Inc., its sub-contractors, et al'.

Plaintiff has brought this action under the indemnification provision of the sub-contract. However, it is conceded that the plaintiff has been paid the sum of $2901 from each of the two insurance companies, by way of reimbursement for the fire loss. It is rather clear that the real parties in interest here are the insurance companies. It is conceded that this is a subrogation action.

Insurance Law, § 148, provides as follows:

'No contract or policy of insurance on property made or issued in this state, or made or issued upon any property in this state, shall be enforceable except for the benefit of some person having an insurable interest in the property insured. The term 'insurable interest,' as used in this section, shall be deemed to include any lawful and substantial economic interest in the safety or preservation of property from loss, destruction or pecuniary damage.'

A party, even though he has no property interest in things insured, may yet have an insurable interest in such property where he will profit by or gain some advantage by its continual existence, and may suffer some loss or disadvantage by its destruction or injury by the happening of the event insured against. (Feinman v. Consolidated Mut. Ins. Co., Mun.Ct., 155 N.Y.S.2d 326.) Also see: Insurance Company of North America v. Seaboard Homes, Inc., 51 Misc.2d 486, 273 N.Y.S.2d 470; Berry v. American Central Ins. Co.,...