WHITE v. [And A Third Party Action.] (1998)

Order, Supreme Court, New York County (Paula Omansky, J.), entered February 18, 1997, which denied defendant/third-party plaintiff's motion for summary judgment on its cross-claim against Patrick J. O'Donoghue Construction, Inc. for indemnification, unanimously reversed, on the law, without costs, and the motion granted.

The church initially established its entitlement to summary judgment, as well as the general contractor O'Donoghue's liability for damages suffered by plaintiff, based upon its uncontroverted showing that O'Donoghue failed to procure insurance for the church as per their agreement (see, Kinney v. G.W. Lisk Co., 76 N.Y.2d 215, 557 N.Y.S.2d 283, 556 N.E.2d 1090;  Morel v. City of New York, 192 A.D.2d 428, 429, 597 N.Y.S.2d 8).   O'Donoghue's contention that the church waived this breach must be rejected inasmuch as it fails to present any evidence tending to establish that the purported waiver was the intentional, voluntary relinquishment of a known right (see, Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968, 525 N.Y.S.2d 793, 520 N.E.2d 512;  Santamaria v. 1125 Park Ave. Corp., 238 A.D.2d 259, 261, 657 N.Y.S.2d 20).   Indeed, there is no evidence here that the church even knew that O'Donoghue had failed to provide the agreed-upon coverage.

MEMORANDUM DECISION.