Board of Education v. J.D. Taylor Construction Corp. , 941 N.Y.S.2d 897 ( 2012 )

Appeal from an order of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.), entered May 9, 2011. The order, among other things, denied the motion of defendant QPK Design for summary judgment.

It is hereby ordered that the order so appealed from is unanimously modified on the law by granting those parts of defendant QPK Design’s motion for summary judgment dismissing the third and fourth cross claims of defendant Turner Construction Company against it and as modified the order is affirmed without costs.

Memorandum: We conclude that Supreme Court erred in denying those parts of defendant QPK Design’s motion for summary judgment dismissing the third and fourth cross claims of defendant Turner Construction Company against it, for contractual indemnification and breach of contract based on QPK Design’s failure to procure the requisite insurance (cf. DiBuono v Abbey, LLC, 83 AD3d 650, 652-653 [2011]; Gillmore v Duke/Fluor Daniel, 221 AD2d 938, 939 [1995]; see generally A & E Stores, Inc. v U.S. Team, Inc., 63 AD3d 486 [2009]). We therefore modify the order accordingly. We reject the remaining contentions of QPK Design for reasons stated by the court in its bench decision. Present — Scudder, PJ., Smith, Fahey, Garni and Sconiers, JJ.