Torrioni v. Unisul, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before KUPFERMAN
• Citation: Torrioni v. Unisul, Inc., 624 N.Y.S.2d 433, 214 A.D.2d 314 (N.Y. App. Div. 1995)
• Decision Date: 04 April 1995
• Parties: Michael TORRIONI, Plaintiff, v. UNISUL, INC., et al., Defendants, Orion Limited Partnership, et al., Appellants, et al., Third-Party Plaintiff, et al., Second Third-Party Plaintiff, Island Lathing & Plastering, Inc., Third-Party and Second Third-Party Defendant-Respondent.

Page 433

624 N.Y.S.2d 433

214 A.D.2d 314

Michael TORRIONI, Plaintiff, v. UNISUL, INC., et al., Defendants Orion Limited Partnership, et al., Appellants, et al Third-Party Plaintiff, et al., Second Third-Party Plaintiff Island Lathing & Plastering, Inc., Third-Party and Second Third-Party Defendant-Respondent.

Supreme Court, Appellate Division First Department.

April 4, 1995.

J.J. Wrenn, for defendants-appellants.

B.W. Stone, for defendant-respondent.

Before KUPFERMAN, J.P., and ROSS, ASCH, NARDELLI and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, Bronx County (Barry Salman, J.), entered October 22, 1993, which, inter alia, denied a motion to renew a cross-motion by defendants Orion Limited Partnership, O & Y (U.S.) Development Company, L.P., O & Y (U.S.) Development General Partner Corp. and Senior Associates (hereinafter collectively referred to as "Orion") for summary judgment is unanimously reversed, on the law, with costs, to the extent herein appealed, the cross-motion for summary judgment in Orion's favor granted, and the matter remanded for a hearing on the issue of reasonable attorney's fees and other damages claimed.

In its initial decision and order dated April 14, 1993, the IAS court correctly found that third-party defendant Island Lathing & Plastering, Inc. (the plaintiff's employer and the subcontractor) had admitted in its papers that it had breached its contractual obligation to the moving defendant Crow Construction Company, Inc. (the contractor) and to the cross-moving Orion defendants (the owners of the premises) to procure general comprehensive and excess indemnity liability insurance naming them as additional insureds. However, "[i]n the interest of justice and to permit ... Island [Lathing] additional time in which to locate" endorsements which might in fact name the moving and cross-moving parties additional insureds, the court denied "both the motion and cross-motion without prejudice to oral renewal" when a trial date was set. Indeed, it was Island Lathing which proposed this resolution of the motion and cross-motion to the IAS court, stating in its papers "that in the event that the two missing endorsements are not located 30 days prior to trial, ... the defendants' motions for summary judgment can be re-submitted without opposition."

The underlying personal injury action brought by Island Lathing's employee, plaintiff Michael Torrioni, was settled. It is undisputed that the endorsements have...