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Board of Education of Solvay Union Free School District, Plaintiff-Respondent v. J.D. Taylor Construction Corporation

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


March 16, 2012

BOARD OF EDUCATION OF SOLVAY UNION FREE SCHOOL DISTRICT, PLAINTIFF-RESPONDENT,
v.
J.D. TAYLOR CONSTRUCTION CORPORATION, TURNER CONSTRUCTION COMPANY, DEFENDANTS-RESPONDENTS, AND QPK DESIGN, DEFENDANT-APPELLANT.
J.D. TAYLOR CONSTRUCTION CORPORATION, THIRD-PARTY PLAINTIFF, DAMACO WINDOW CONTRACTORS, INC., THIRD-PARTY DEFENDANT-RESPONDENT, AND KALWALL CORPORATION, THIRD-PARTY DEFENDANT.

Appeal from an order of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.), entered May 9, 2011.

Board of Educ. of Solvay Union Free School Dist. v J.D. Taylor Constr. Corp.

Decided on March 16, 2012

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.

The order, among other things, denied the motion of defendant QPK Design for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting those parts of defendant QPK Design's motion for summary judgment dismissing the third and fourth cross claims of defendant Turner Construction Company against it and as modified the order is affirmed without costs.

Memorandum: We conclude that Supreme Court erred in denying those parts of defendant QPK Design's motion for summary judgment dismissing the third and fourth cross claims of defendant Turner Construction Company against it, for contractual indemnification and breach of contract based on QPK Design's failure to procure the requisite insurance (cf. DiBuono v Abbey, LLC, 83 AD3d 650, 652-653; Gillmore v Duke/Fluor Daniel, 221 AD2d 938, 939; see generally A & E Stores, Inc. v U.S. Team, Inc., 63 AD3d 486). We therefore modify the order accordingly. We reject the remaining contentions of QPK Design for reasons stated by the court in its bench decision.

Entered: March 16, 2012

Frances E. Cafarell Clerk of the Court

20120316

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