MEGA CONTRACTING INC v. (and a third-party action). (2007)

In an action, inter alia, to recover damages for breach of contract, the defendant Gary E. Emanuel Brokerage, Inc., appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Weiss, J.), entered March 6, 2006, as denied that branch of its motion which was for summary judgment dismissing the eighth cause of action for breach of contract.

ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.

The plaintiff, Mega Contracting, Inc. (hereinafter Mega), commenced this action, inter alia, against the defendant insurance broker, Gary E. Emanuel Brokerage, Inc. (hereinafter Emanuel), to recover damages stemming from Emanuel's alleged failure to forward a timely notice of claim to Mega's insurance carrier.   Contrary to Emanuel's contention, the Supreme Court properly denied that branch of its motion which was for summary judgment dismissing the eighth the cause of action to recover damages for breach of contract (see National Life Ins. Co. v. Hall & Co. of N.Y., 111 A.D.2d 681, 682, 490 N.Y.S.2d 500, affd. 67 N.Y.2d 1021, 503 N.Y.S.2d 318, 494 N.E.2d 449;  cf. Kracke v. Western World Ins. Co., 121 A.D.2d 692, 693, 503 N.Y.S.2d 1012), as there are triable issues of fact regarding the existence of a valid contract (see Marks v. Macchiarola, 204 A.D.2d 221, 612 N.Y.S.2d 405;  Beer City v. Canada Dry Bottling Co. of N.Y., 157 A.D.2d 693, 549 N.Y.S.2d 792).

Mega's contention that the Supreme Court erred in dismissing its seventh cause of action to recover damages for negligence (see Lavandier v. Landmark Ins. Co., 26 A.D.3d 264, 810 N.Y.S.2d 45) is not properly before us as Mega did not appeal from that portion of the Supreme Court's order and judgment which granted that branch of Emanuel's motion which was for summary judgment dismissing the seventh cause of action (see Stevenson v. Alfredo, 277 A.D.2d 218, 220-221, 715 N.Y.S.2d 444).