City of New York v. American Safety Casualty Insurance

City of New York v American Safety Cas. Ins. Co. (2014 NY Slip Op 05024)

City of New York v American Safety Cas. Ins. Co.

2014 NY Slip Op 05024

Decided on July 3, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 3, 2014
Gonzalez, P.J., Acosta, DeGrasse, Freedman, Richter, JJ.

12953 450214/12

[*1] The City of New York, Plaintiff-Appellant,

v

American Safety Casualty Insurance Company, Defendant-Respondent. [And A Third-Party Action]

Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for appellant.

Westermann Sheehy Keenan Samaan & Aydelott, LLP, Uniondale (Avninder S. Aujla of counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 11, 2013, which, to the extent appealed from as limited by the briefs, denied so much of plaintiff's motion for summary judgment as sought payment of fines and fees incurred by third-party defendant Pullini Subsurface Contractors, Inc., and granted defendant's cross motion for partial summary judgment dismissing plaintiff's claim for such fines and fees, unanimously affirmed, without costs.

Supreme Court correctly held that the bond agreements for two permit bonds issued by defendant, as surety, in favor of third-party defendant Pullini, as principal, do not require defendant to pay for fines and fees issued by agents of the City in connection with permitted work performed by Pullini. Indeed, the language used in the bonds does not expressly or impliedly state that defendant is liable for any fines or fees incurred by Pullini. Rather, the language unambiguously provides that defendant shall "either pay to complete the work and/or obligations, including repair and maintenance thereof (the "Permitted Work"), or to fully complete the Permitted Work . . . to be performed under [Pullini's] permits . . . if [Pullini] . . . has failed or neglected to fully perform and complete such Permitted Work." Supreme Court correctly found that the word "obligations" does not encompass the payment of fines or fees, but rather is limited to the enumerated "repair and maintenance" work and things of a similar nature (see Popkin v Security Mut. Ins. Co. of N.Y. , 48 AD2d 46, 48 [1st Dept 1975]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 3, 2014

DEPUTY CLERK