Tkacs v. Dominion Construction Corp.

In an action to recover damages for personal injuries, the defendant Dominion Construction Corp., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Lock-man, J.), dated August 4, 1999, as, upon granting its motion 487 for summary judgment on its cross claim for indemnification against the defendant Schnabel Roofing of Long Island, Inc., limited its damages to the cost of liability insurance it may have procured on its own. Ordered that the order is reversed insofar as appealed from, with costs, and the appellant is entitled to all damages resulting from the breach of the agreement at issue, including a defense in the underlying personal injury action, indemnification for its liability to the plaintiff, if any, and the costs it has incurred in defending the plaintiff's action. In granting the appellant’s motion on its cross claim, the Supreme Court improperly limited the measure of its damages. Due to the respondent’s breach of an agreement to procure insurance naming the appellant as an additional insured, the appellant is entitled to all damages resulting from the breach, including a defense in the underlying personal injury action, indemnification for its liability to the plaintiff, if any, and the costs it has incurred in defending the plaintiff’s action (see, Kinney v Lisk Co., 76 NY2d 215; Kennelty v Darlind Constr., 260 AD2d 443; Darowski v High Meadow Coop. No. 1, 239 AD2d 541). Bracken, J. P., Santucci, Altman and Florio, JJ., concur.