TRACIE R. STRONG, ET AL., PLAINTIFFS,
STEPPING STONES LEARNING CENTER, THIRD-PARTY DEFENDANT-APPELLANT.
ST. THOMAS CHURCH OF IRONDEQUOIT, ALSO KNOWN AS ST. THOMAS THE APOSTLE CHURCH, AND KATERI TEKAWITHA ROMAN CATHOLIC PARISH, THIRD-PARTY PLAINTIFFS-RESPONDENTS, ST. THOMAS CHURCH OF IRONDEQUOIT, ALSO KNOWN AS ST. THOMAS THE APOSTLE CHURCH, AND KATERI TEKAWITHA ROMAN CATHOLIC PARISH, THIRD-PARTY PLAINTIFFS-RESPONDENTS
GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL),
FOR THIRD-PARTY DEFENDANT-APPELLANT.
CHARLES A. HALL, ROCHESTER, FOR DEFENDANTS-THIRD-PARTY
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, TROUTMAN, AND
from an order of the Supreme Court, Monroe County (Richard A.
Dollinger, A.J.), entered February 11, 2016. The order, among
other things, denied in part the motion of third-party
defendant for summary judgment dismissing the third-party
hereby ORDERED that the order so appealed from is unanimously
modified on the law by vacating the fourth ordering paragraph
and as modified the order is affirmed without costs.
Third-party defendant, Stepping Stones Learning Center
(Stepping Stones), appeals from an order that denied in part
its motion seeking summary judgment dismissing, inter alia,
the third-party complaint and, instead, granted summary
judgment to nonmoving defendants-third-party plaintiffs
(hereafter, Church defendants) on the breach of contract
claims. Although we agree with Stepping Stones that Supreme
Court erred in granting summary judgment to the Church
defendants on those claims, we conclude that the court
properly denied in part Stepping Stones's motion.
Stones leased certain premises from the Church defendants
and, pursuant to the lease agreement between the parties,
Stepping Stones was required to obtain liability insurance
naming defendant-third-party plaintiff St. Thomas Church of
Irondequoit, also known as St. Thomas the Apostle Church
(Church), as an additional insured. The lease further
required that the insurance policy obtained by Stepping
Stones would "insur[e] [the Church] and [Stepping
Stones] against liability for injury to persons or property
occurring in or about the Premises or arising out of
ownership, maintenance, use, or occupancy of [the]
Premises." It is undisputed that Stepping Stones
obtained an insurance policy that named the Church as an
additional insured. The lease also obligated Stepping Stones
to indemnify the Church for any damages arising out of any
personal injury sustained by anyone "in or about"
the leased premises unless such injury was caused by the
negligence of the Church or any of its agents.
the lease was in effect, Tracie R. Strong (plaintiff), an
employee of Stepping Stones, was allegedly injured after she
slipped and fell on snow and ice in the Church's parking
lot. Plaintiffs thereafter commenced a personal injury action
against the Church defendants. The Church sought coverage
under the policy obtained by Stepping Stones naming the
Church as an additional insured, but the insurance carrier
disclaimed coverage, prompting the Church defendants to
commence a third-party action against Stepping Stones. The
third-party complaint sought contractual indemnification and
alleged that Stepping Stones breached the lease by failing to
obtain the requisite liability insurance.
discovery, Stepping Stones moved for summary judgment
dismissing the third-party complaint and all claims and
cross-claims asserted against it, contending only that,
because the Church was obligated under the lease to plow and
salt the parking lot where plaintiff allegedly fell, the
Church itself was negligent and is therefore not entitled to
contractual indemnification from Stepping Stones. The motion
made no mention of the breach of contract claims, and
Stepping Stones failed to submit a copy of the insurance
policy in support of its motion. In opposition to the motion,
the Church defendants addressed only the breach of contract
claims, contending that, inasmuch as the insurance carrier
disclaimed coverage, Stepping Stones breached the lease by
failing to obtain the requisite insurance coverage. The
Church defendants also failed to submit a copy of the
insurance policy with their opposing papers. In reply,
Stepping Stones submitted only portions of the insurance
denying Stepping Stones's motion in part and sua sponte
granting summary judgment to the Church defendants on the
breach of contract claims, the court reasoned that the Church
defendants were entitled to judgment on the ground that,
"[i]f the insurance carrier provided by Stepping Stones
fails to cover the broad coverage demanded by the Lease, then
Stepping Stones has breached the Lease agreement."
appeal, Stepping Stones addresses only the court's
determination with respect to the breach of contract claims.
We agree with Stepping Stones that the court erred in
granting summary judgment to the Church defendants on those
claims, and we therefore modify the order accordingly. The
mere fact that the insurance carrier disclaimed coverage for
the accident does not establish as a matter of law that
Stepping Stones failed to obtain the necessary coverage. It
is possible that the insurance carrier's disclaimer was
improper, and that possibility may be explored by way of a
declaratory judgment action (see e.g. Bowker v NVR,
Inc., 39 A.D.3d 1162, 1164; Rohlin v Nationwide Mut.
Ins. Co., 26 A.D.3d 749, 750).
further conclude, however, that Stepping Stones is not
entitled to summary judgment with respect to the breach of
contract claims. As noted above, Stepping Stones's motion
was directed at the contractual indemnification claim only,
and no proof was offered in support of the motion with
respect to the breach of contract claims. Stepping Stones
"did not establish its prima facie entitlement to
judgment as a matter of law dismissing the... claims alleging
breach of contract for the failure to procure insurance, as
it did not submit any evidence demonstrating that it procured
an insurance policy as required by the lease"
(Simmons v Berkshire Equity, LLC, 149 ...