Transamerica Ins. Fin.
v.
Iron Eagle Con

Appellate Division of the Supreme Court of New York, Second DepartmentJun 1, 1999
262 A.D.2d 303 (N.Y. App. Div. 1999)
262 A.D.2d 303691 N.Y.S.2d 98

Argued April 15, 1999

June 1, 1999

In an action to recover an insurance premium, (1) the defendant Iron Eagle Contracting Corp. appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), entered April 27, 1998, as denied its motion for summary judgment on its cross claims against Centerport Insurance Agency, Inc., (2) Centerport Insurance Agency, Inc., and Michael K. Kennedy cross-appeal from so much of the same order as denied their cross motion for summary judgment against the third-party defendant National Union Fire Insurance Company, and (3) National Union Fire Insurance Company cross-appeals from so much of the same order as denied its motion for summary judgment dismissing the third-party complaint.

Flanagan Cooke, P.C., New York, N.Y. (Joseph J. Cooke of counsel), for defendant-appellant-respondent.

Lustig Brown, LLP, New York, N.Y. (William C. Kelly and Hermenegildo A. Isidro of counsel), for defendants third-party plaintiffs-respondents-appellants.

Cobert, Haber Haber, Mineola, N.Y. (Eugene Haber of counsel), for third-party defendant-respondent-appellant.

CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, HOWARD MILLER, NANCY E. SMITH, JJ.


DECISION ORDER

ORDERED that the order is reversed insofar as appealed from, and the motion of Iron Eagle Contracting Corp. is granted; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

ORDERED that Iron Eagle Contracting Corp. is awarded one bill of costs payable by Centerport Insurance Agency, Inc.

Iron Eagle Contracting Corp. (hereinafter Iron Eagle) is entitled to summary judgment on its cross claims since Centerport Insurance Agency, Inc. (hereinafter Centerport), concedes that it was obligated to obtain a policy with a premium based on payroll and that it did not provide such a policy ( see, Tucci v. Hartford Cas. Ins. Co., 167 A.D.2d 387). The Supreme Court erred in denying the motion on the ground that Iron Eagle did not establish that the coverage it requested could be procured, since Centerport did not contest the availability of the coverage and Iron Eagle had obtained such coverage from other carriers ( see, Gorgone v. Regency Agency, 238 A.D.2d 265; cf., American Motorists Ins. Co. v. Salvatore, 102 A.D.2d 342, 346).

However, the cross motions for summary judgment by Centerport and National Union Fire Insurance Company (hereinafter National Union) were properly denied since there are factual issues which must be resolved before determining whether National Union was required to provide the coverage which its agent promised would be obtained ( see, Neil Plumbing Heating Constr. Corp. v. Providence Washington Ins. Co., 125 A.D.2d 295, 297), or whether the written policy controlled ( see, Simon v. Colonial States Brokerage Corp., 128 A.D.2d 603).