Citation Numbers: 50 A.D.2d 995
Filed Date: 12/18/1975
Status: Precedential
Modified Date: 1/12/2022
— Appeals from (1) an order of the County Court, Rensselaer County, entered June 11, 1975, which dismissed appellant’s third-party complaint and (2) that portion of an order of the same court, entered June 11, 1975, awarding plaintiffs’ motion costs of $20 and attorneys’ fees in the sum of $100. Plaintiffs, Donald J. and Valerie M. Sutton, sued the appellant Cobb to recover $6,000 damages alleging in their complaint that appellant, a licensed insurance broker, undertook to place fire insurance on their barn in November, 1970 for a three-year period; in March, 1973 the barn was destroyed by fire; after proof of loss was duly filed, plaintiffs were informed their property was not insured and that appellant through his carelessness and negligence failed to insure the barn. Appellant served an amended answer denying material allegations of the complaint and asserting eight affirmative defenses. Appellant brought a third-party action against the respondent Potomac Insurance Company alleging that as agent of Potomac he placed coverage on the barn with Potomac and that after proof of loss was filed Potomac denied coverage and liability. For a second cause of action in the third-party complaint appellant alleges that Potomac’s failure to recognize liability to plaintiffs Suttons was a violation of the agency agreement between appellant and respondent Potomac. On respondent Potomac’s motion for summary judgment the facts were clearly established that plaintiffs Suttons’ barn was not insured due to the oversight and neglect of appellant to cause a fire insurance policy to issue. The error and neglect were shown by written communications from appellant to respondent Potomac and was not denied by appellant in the answering affidavit executed by one of his attorneys in the action. There is no triable issue of fact in the third-party action. Appellant cannot obtain indemnity from his principal for his liability to third persons predicated on his own negligence (cf. Brown v Poritzky, 30 NY2d 289; 2 NY Jur, Agency, § 224). Respondent Potomac’s motion for summary judgment was properly granted. There is no merit to appellant’s claim that Special Term had to make findings of fact and conclusion of law in the original action brought by plaintiffs Suttons before deciding the motion for summary judgment in the third-party action. Appellant’s claim that he made a motion for summary judgment against plaintiffs Suttons is not supported by the record. The record contains no notice of motion for summary judgment by appellant against plaintiffs Suttons. Plaintiffs Suttons made no motion for summary judgment so that appellant is not entitled to summary judgment against Suttons without a notice of motion. CPLR 3212 (subd [b]) which provides