Acorn Hous. Assoc., L.P. v Sirius Am. Ins. Co.
Annotate this CaseDecided on February 20, 2014
Supreme Court, Kings County
Acorn Housing Associates, L.P., Plaintiff,
against
Sirius America Insurance Company and SIGMA CONTRACTING CORP., Defendants.
Sigma Contracting Corp., Defendant third-party plaintiff - -
against
Tekton Contracting Corp., APPOLO TECH, CORP., UTICA FIRST INSURANCE COMPANY, NATIONAL INDEMNITY COMPANY a.k.a. NATIONAL FIRE & MARINE INSURANCE COMPANY, Defendant third-party defendants
1677/09
Attorneys for the defendant/third party plaintiff Sigma
Farrell and Fritz
Jason S. Samuels, Esq.
1320 RXR Plaza
Uniondale, NY 11556
516-227-0700
Attorney for the third party defendant Tekton Contracting Corp. Braunschweig & Osborne
Bruce D. Osborne, Esq.
c/o Stephen P.H. Rachlis, Esq
328 N. Broadway, 2nd Floor
Nyack, NY 10960
207-395-8006
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of defendant third-party plaintiff Sigma Contracting Corp., (hereinafter Sigma) filed on September 30, 2013, under motion sequence number ten, for an order granting summary judgment pursuant to CPLR 3212 on the issue of damages against defendant third-party defendant Tekton Contracting Corp. (hereinafter Tekton) in the sum of $51,720.20; or in the alternative, directing that an inquest be held on damages.
- Notice of Motion
- Attorney Affirmation
- Exhibits A - L
- Memorandum of Law
- Affirmation in Opposition
- Exhibits 1 - 5
- Reply Affidavit
- Reply Memorandum of Law
BACKGROUND
On December 23, 2009, the defendant third-party plaintiff Sigma commenced the instant third-party action by filing a third-party summons and verified complaint with the Kings County Clerk's office. The third party complaint contains forty seven allegations of fact in support of five causes of action. The first cause of action is for indemnification as against Tekton. The second cause of action is for breach of contract as against Tekton. The fourth cause of action is for indemnification as against Utica First Insurance Company. The fifth cause of action is for indemnification as against National Indemnity Company a.k.a. National Fire & Marine Insurance Company.
During the period of January and April 2010, all third-party defendants joined issue by separately answering Sigma's third party complaint against them.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the [*2]opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d at 324).
A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated For Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).
Sigma has moved pursuant to CPLR 3212 for summary judgment on the issue of damages in its third party complaint against third-party defendant Tekton in the sum of $51,720.20; or in the alternative, directing that an inquest be held on damages.
"A party seeking summary judgment based on an alleged failure to procure insurance naming that party as an additional insured must demonstrate that a contract provision required that such insurance be procured and that the provision was not complied with" (DiBuono v Abbey, LLC, 83 AD3d 650, 652 [2nd Dept 2011] citing Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738, 739 [2nd Dept 2003]).
Once a breach to procure insurance naming that party as an additional insured is established, the promisor is liable to the promisee for the resulting damages for the promisor's failure to obtain the required insurance coverage, including the liability of the promisee to the plaintiff (see Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 621 [2nd Dept 2008]).
In support of the motion Sigma has annexed the following pleadings. Annexed as exhibit A is the complaint of Jose D. Cruz (hereinafter the injured plaintiff) against defendant Acorn Housing Associates, L.P (hereinafter Acorn) for violations of Labor Law § 240 (1); 241 (6) and 200 brought under index number 14840/2006. Annexed as exhibit B is the instant summons and complaint of Acorn against Sirius American Insurance Company (hereinafter Sirius) and against Sigma. Annexed as exhibit C is the verified answer of Sigma and the verified answer of Sirius to the instant action. Annexed as exhibit D is Sigma's third party summons and verified third party complaint against defendant third-party defendants Tekton, Appolo Tech, Corp., Utica First Insurance Company and National Indemnity Company a.k.a. National Fire & Marine Insurance Company. Annexed as exhibit E is Tekton's answer to Sigma's third-party complaint.
Sigma also annexed as exhibit F part of a copy of a prior motion for summary judgment it filed under motion sequence six (hereinafter the prior motion). The prior motion sought, among other things, summary judgment pursuant to CPLR 3212 on the issue of liability as against Tekton on the second cause of action for breach of contract. Sigma chose not to include the eight annexed exhibits labeled A through H that were part of the prior motion. According to the affirmation of Sigma's counsel, which referred to the eight exhibits included with the prior motion, he described exhibit F as a copy of the pertinent subcontract (hereinafter the Subcontract) between Sigma and Tekton. Sigma's counsel relied on language contained in the Subcontract in support of its claim that Tekton was obligated to procure insurance for its benefit. Sigma did not annex Tekton's opposition papers to the prior motion.
Sigma has also annexed as exhibit G a prior order of this court dated June 8, 2012, which decided the prior motion (hereinafter the prior order). By the prior order, the court granted Sigma's motion for summary judgment on its second cause of action against Tekton for breach of [*3]an agreement to procure and maintain insurance covering Sigma.
A defendant's failure to procure insurance in breach of a contract does not by itself establish that the promisee has sustained damages due to the breach. Actual damages must be causally linked to the breach and must be proved. For example, if the promisor agreed to procure liability insurance covering a specific risk to be effective a particular date and the event encompassed by the specific risk occurred before the effective date, the breach would have no causal link to the promisee's claim of damages. Similarly, if the event was not covered by the risk which the promissor agreed to cover, again the breach would have no causal link to the promisee's claim of damages (see eg. Terrell v City of New York, 74 AD3d 787 [2nd Dept 2010]). Even in those cases where the breach is causally linked to the promisee's claim for damage, the amount of damages must also be proved. For example, if the promisee purchased its own insurance which in effect would have duplicated the coverage that the promisor was obligated to procure, the measure of damages caused by the promisor's breach would be limited to the cost of the premiums paid by the promisee for the insurance it procured and certain incidental expenses (see Cucinotta v City of New York, 68 AD3d 682 [1st Dept 2009]).
As previously stated, Sigma does not prove its entitlement to damages by merely showing that Tekton breached and agreement to procure insurance coverage for its benefit. Consequently by not submitting a copy of the subcontract between Sigma and Tekton, Sigma cannot establish that Tekton's breach of the contract caused it to sustain damages.
Had Sigma annexed the complete set of the prior motion papers and accompanying exhibits, the court would have had the subcontract between Sigma and Tekton. It also would have had Tekton's prior opposition papers.
A court should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions (see Sheedy v Pataki, 236 AD2d 92, 97-98 [3rd Dept 1997]). "There is no authority for compelling [a court] to consider papers which were not submitted in connection with the motion on which it is ruling; indeed, under CPLR 2214 (c), the court may refuse to consider improperly submitted papers"(Biscone v JetBlue Airways Corp., 103 AD3d 158, 178 [2nd Dept 2012]).
Accordingly, Sigma did not establish prima facie its entitlement to damages caused by Tekton's breach of the subcontract. Therefore, the motion is denied without prejudice and without regard to the sufficiency of Tekton's opposition papers (Winegrad v New York University Medical Center, 64 NY2d 851,853 [1985]). Where a party has damages but the total cannot be ascertained, it is an appropriate course of action to deny the moving party summary judgment as to damages and conduct an inquest (see CPLR 3212 [c]; see also Murray v Farrell, 97 AD3d 953, 956 [3rd Dept 2012]). However, when there is no admissible evidence of any amount of damages causally linked to the defendant's breach of the subcontract, the appropriate action is to simply deny the motion. Sigma is directed to file a note of issue and proceed to trial on the issue of its damages.
CONCLUSION
Sigma's motion for summary judgment on the issue of damages against defendant third-party defendant Tekton in the sum of $51,720.20 is denied.
Sigma's motion for an order directing an inquest be held on damages sustained by Sigma caused by Tekton's breach of the subcontract is denied. [*4]
The foregoing constitutes the decision and order of this Court.
Enter:X
J.S.C
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