Republic Insurance v. Amin Construction Corp.

In an action, inter alia, to recover under an indemnity agreement, the appeal is from a judgment of the Supreme Court, Richmond County, dated October 4, 1979 in favor of the plaintiff in the principal sum of $14,730 (we deem the notice of appeal to be a premature notice from the judgment [CPLR 5520, subd (c)]). Judgment and order dated August 8, 1979 (upon which said judgment was entered), reversed, on the law, without costs or disbursements, summary judgment is granted to plaintiff only as to liability and matter remanded to the Supreme Court, Richmond County, for further proceedings consistent herewith. Defendants obtained a performance bond from plaintiff, whereby plaintiff guaranteed to the New York City Department of Water Resources the completion of sewer facilities for a residential development on Staten Island. In a separate agreement defendants agreed to indemnify plaintiff for any liability which it might incur as a result of the bond. After defendants failed to complete the sewer facilities, plaintiff did so upon demand by the city agency. The reasonableness of the cost of completion, the premiums due on the insurance contract, and the attorney’s fees incurred to prosecute this action, represent issues of fact that cannot be resolved solely on the basis of the proof submitted. Thus, the matter is remanded for an assessment of damages. Titone, J. P., Gibbons, Hargett and O’Connor, JJ., concur.