TROKIE v. Pung Sang Construction Corp., Defendant-Respondent. (2001)

Order, Supreme Court, New York County (Stephen Crane, J.), entered March 29, 2000, and order same court (Franklin Weissberg, J.), entered June 23, 2000, which, to the extent appealed from as limited by the brief, limited defendant-appellant York Preparatory School, Inc.'s remedy for defendant-respondent Pung Sang Construction Corp.'s breach of a construction contract's insurance procurement clause to recovery of the premium paid by York to procure its own liability insurance, unanimously modified, on the law, to the extent of adding York's right to seek damages for any other expense arising out of the liability claim and not covered by substitute insurance, and otherwise affirmed, without costs.

The proper measure of York Preparatory School's damages for Pung Sang's breach of the subject insurance procurement clause is the full cost of insurance to York, i.e., the premiums it paid for its own insurance, any out-of-pocket costs that may have been incurred incidental to the policy, and any increase in its future insurance premiums resulting from the liability claim (see, Inchaustegui v. 666 5th Ave. Ltd. Partnership, 96 N.Y.2d 111, 725 N.Y.S.2d 627, 749 N.E.2d 196).   Since York only cross-moved for partial summary judgment on the breach of the insurance procurement provision, it may not now argue, for the first time on appeal, that it is entitled to judgment based on the contract's indemnity clause (see, Fisher v. Socy. of the New York Hosp., 271 A.D.2d 262, 707 N.Y.S.2d 43).