Phillips v. Trommel Constr.
| Decision Date | 26 December 2012 |
| Citation | 101 A.D.3d 1097,2012 N.Y. Slip Op. 09040,957 N.Y.S.2d 359 |
| Parties | Stephen PHILLIPS, et al., plaintiffs-respondents, v. TROMMEL CONSTRUCTION, et al., defendants, Schnabel Roofing, et al., defendants-respondents, Utica First Insurance Company, appellant. |
| Court | New York Supreme Court — Appellate Division |
101 A.D.3d 1097
957 N.Y.S.2d 359
2012 N.Y. Slip Op. 09040
Stephen PHILLIPS, et al., plaintiffs-respondents,
v.
TROMMEL CONSTRUCTION, et al., defendants,
Schnabel Roofing, et al., defendants-respondents,
Utica First Insurance Company, appellant.
Supreme Court, Appellate Division, Second Department, New York.
Dec. 26, 2012.
[957 N.Y.S.2d 360]
Farber Brocks & Zane, LLP, Mineola, N.Y. (Andrew J. Mihalick of counsel), for appellant.
Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville, N.Y. (Elizabeth Gelfand Kastner of counsel), for defendant-respondent Leak Stoppers, Inc.
THOMAS A. DICKERSON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
[101 A.D.3d 1097]In an action, inter alia, to recover damages for breach of contract, the defendant Utica First Insurance Company appeals, as limited by its reply brief, from stated portions of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated December 20, 2010, which, among other things, denied those branches of its motion which were, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint and the cross claims of the defendants Schnabel Roofing and Leak Stoppers, Inc., insofar as asserted against it.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion of the defendant Utica First Insurance Company which were, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint and the cross claims of the defendants Schnabel Roofing and Leak Stoppers, Inc., insofar as asserted against it, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendant Utica First Insurance Company payable by the defendants Schnabel Roofing and Leak Stoppers, Inc.
The plaintiffs, the owners of an office building, hired the defendant Trommel Construction (hereinafter Trommel) to replace the building's roof. Trommel subcontracted with the defendant Schnabel Roofing (hereinafter Schnabel) to perform
the work. Trommel and Schnabel did not perform the work to the [101 A.D.3d 1098]plaintiffs' satisfaction. The plaintiffs subsequently hired Leak Stoppers, Inc. (hereinafter Leak Stoppers), to repair the alleged defects, but problems with the roof persisted. As a result, the plaintiffs commenced this action against Trommel, Schnabel, and Leak Stoppers alleging, among other things, breach of...
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