Empire Associates v. North River Insurance

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered March 27, 1995, which, inter alia, granted plaintiffs’ motion for summary judgment, denied defendants’ cross motion for summary judgment, and declared that defendants are obligated to defend and indemnify plaintiffs in an underlying action, unanimously affirmed, with costs. Since plaintiffs did not have keys to the safety deposit boxes of their tenants, but merely controlled access into and provided independent security guard services for the vault room where the boxes were located, defendants were contractually required to defend and indemnify plaintiffs when they were sued by one of their tenants for losses sustained as a result of the theft of diamonds from its box. The exclusion provisions contained in the insurance policies were not applicable since the stolen diamonds were neither in the "care, custody or control” nor in the "physical control” of plaintiffs (see, County of Broome v Travelers Indem. Co., 88 AD2d 720, affd 58 NY2d 753). Concur — Wallach, J. P., Nardelli, Williams and Mazzarelli, JJ.