Gribbon v. Missionary Sisters of Sacred Heart

—Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about August 10, 1992, which inter alia, granted defendant and third-party plaintiff’s motion for summary judgment for common law indemnity against third-party defendant only to the 70 extent that damage awarded to plaintiff exceed the limits of defendant and third-party plaintiff’s insurance coverage, unanimously affirmed, without costs. Defendant and third-party plaintiff, Missionary Sisters of the Sacred Heart ("MSSH”), found absolutely liable pursuant to Labor Law § 240 for injuries sustained by third-party defendant’s ("Anderson”) workers while they were on the job, sought common law indemnification for Anderson’s negligence in failing to provide safe working conditions. Although the agreement between MSSH and Anderson did not require Anderson to indemnify MSSH, Anderson nevertheless purchased insurance coverage which named MSSH as an additional insured for losses due to, inter alia, bodily injury. Since both MSSH and Anderson are insured by the same carrier for the same risks under the same policy, MSSH’s claim for common law indemnity amounts to a "blatant attempt to seek contribution from [Anderson’s] primary carrier * * * prior to the exhaustion of the coverage afforded by the polic[y] covering the specific liability at issue [and] would allow [the] carrie[r] a right of subrogation against [its] own insured for a claim arising from the very risk for which the insured was covered” (Michalak v Consolidated Edison Co., 166 AD2d 213, 214-215, lv dismissed 77 NY2d 989; see also, Prince v City of New York, 189 AD2d 33, lv granted 191 AD2d 240). Concur — Sullivan, J. P., Wallach, Ross and Nardelli, JJ.