Metal Window Service Co. v. Coordinated Metals, Inc. , 505 N.Y.S.2d 564 ( 1986 )

— Judgment, Supreme Court, New York County (Dontzin, J.), entered on March 11, 1986, granting plaintiffs motion for summary judgment declaring the defendant Boston Old Colony Insurance Company is obligated to defend and indemnify the plaintiff Metal Window Service Company for any judgment rendered against it arising from the causes of action brought by James and Kathleen Gruber and which denied defendant Boston Old Colony Insurance Company’s motion for summary judgment dismissing the complaint, is unanimously modified on the law and the facts, to the extent of directing that the judgment be amended to provide that "boston old colony insurance company is obligated to indemnify, consistent with the 'Other Insurance’ clauses of its policy, metal window service company for any judgment rendered against it which results from the claims arising from the causes of action brought by the plaintiffs james gruber and Kathleen gruber”, and is otherwise affirmed, without costs.

The granting of plaintiffs motion for summary judgment, declaring the exclusionary clause invalid and requiring the defendant Boston Old Colony Insurance Company to assume coverage, is affirmed for the reasons stated by Justice Michael Dontzin at Trial Term.

We note, however, that while coverage was the only issue submitted to, and determined by, Trial Term, the terms of the judgment entered on its decision extend beyond the parameters of the issue litigated by additionally imposing upon defendant Boston Old Colony Insurance Company the obligation to indemnify, without limitation, plaintiff Metal Window Service Company for any judgment rendered against it which results from claims arising from the causes of action brought by the Gruber plaintiffs. The extent to which Boston Old Colony Insurance Company will be obligated to indemnify Metal Window Service Company in the event of such judgment was not determined by Trial Term, nor could it be, on this record in light of the "Other Insurance” clauses contained in the policy. Accordingly, it is necessary to modify the judgment to reflect that Boston Old Colony’s obligation to indemnify plaintiff for any such judgment is without prejudice to the provisions in the policy relating to "Other Insurance”. Concur — Kupferman, J. P., Sullivan, Carro, Rosenberger and Ellerin, JJ.