COMMISSIONERS OF STATE INSURANCE FUND v. TOM LaMERE ASSOCIATES INC (2006)

Supreme Court, Appellate Division, Fourth Department, New York.

COMMISSIONERS OF the STATE INSURANCE FUND, Plaintiffs, v. TOM L. LaMERE & ASSOCIATES, INC., Defendant.
Tom L. LaMere & Associates, Inc., Third-Party Plaintiff-Respondent, v. The Young Agency, Third-Party Defendant-Appellant.

Decided: July 07, 2006

PRESENT: KEHOE, J.P., GORSKI, MARTOCHE, PINE, AND HAYES, JJ.

Thorn Gershon Tymann and Bonanni, LLP, Albany (Carol A. Moore of Counsel), for Third-Party Defendant-Appellant. Frank A. Bersani, Jr., Syracuse, for Third-Party Plaintiff-Respondent.

We agree with third-party defendant that Supreme Court erred in denying its cross motion for summary judgment dismissing the third-party complaint, for indemnification. Indemnification does not lie in the third-party action because plaintiff is suing defendant for its alleged breach of the insurance contract and is not seeking to hold it vicariously liable for any negligence on the part of third-party defendant (see Edgewater Constr. Co. v. 81 & 3 of Watertown, 252 A.D.2d 951, 952-953, 675 N.Y.S.2d 722, lv. denied 92 N.Y.2d 814, 681 N.Y.S.2d 474, 704 N.E.2d 227).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the cross motion is granted and the third-party complaint is dismissed.

MEMORANDUM:

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