Commissioners of the State Insurance v. Tom L. La Mere & Associates, Inc.

Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered May 26, 2005. The order, insofar as appealed from, denied the cross motion of third-party defendant for summary judgment dismissing the third-party complaint. It is hereby ordered that the order insofar as appealed from [1182] be and the same hereby is unanimously reversed on the law without costs, the cross motion is granted and the third-party complaint is dismissed. Memorandum: We agree with third-party defendant that Supreme Court erred in denying its cross motion for summary judgment dismissing the third-party complaint, for indemnification. Indemnification does not lie in the third-party action because plaintiff is suing defendant for its alleged breach of the insurance contract and is not seeking to hold it vicariously liable for any negligence on the part of third-party defendant (see Edgewater Constr. Co. v 81 & 3 of Watertown, 252 AD2d 951, 952-953 [1998], lv denied 92 NY2d 814 [1998]). Present—Kehoe, J.P., Gorski, Martoche, Pine and Hayes, JJ.