Port Authority of New Jersey v. Evergreen International Aviation, Inc. , 713 N.Y.S.2d 124 ( 2000 )

—In an action, inter alia, for a judgment declaring that the defendants Evergreen International Aviation, Inc., United States Aviation Underwriters, Inc., United States Aircraft Insurance Group, Inc., and Aon Risk Services of Oregon, Inc., are required to insure, indemnify, defend, and hold the plaintiff harmless in an action entitled Affiliated FM Ins. Co. v Port Auth., pending in the United States District Court, for the Eastern District of New York, under Index No. CV 96-1713 (JG), the plaintiff appeals, as limited by its brief, from (1) so much of an order and judgment (one paper) of the Supreme Court, Queens County (Golar, J.), dated June 22, 1999, as denied its motion for summary judgment and declared, inter alia, that the defendant United States Aviation Underwriters, Inc., does not have a duty to the plaintiff to defend and indemnify it in the underlying Federal action, and (2) so much of an order of the same court, dated September 16, 1999, as, upon reargument, adhered to the original determination denying its motion for summary judgment. The defendant United States Aviation Underwriters, Inc., cross-appeals, as limited by its brief, from (1) so much of the order and judgment (one paper) dated June 22, 1999, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it, and (2) so much of the order dated September 16, 1999, as, upon reargument, adhered to the original determination denying its motion for summary judgment and deleted that portion of the judgment as declared that it does not have a duty to the plaintiff to defend and indemnify it in the underlying Federal action.

Ordered that the appeal and cross appeal from the order and judgment dated June 22, 1999, are dismissed, as the order and judgment was superseded by the order dated September 16, 1999, made upon reargument, and it is further,

Ordered that the order dated September 16, 1999, is affirmed insofar as appealed from; and it is further,

Ordered that the order dated September 16, 1999, is reversed insofar as cross-appealed from, on the law, upon reargument, the motion of the defendant United States Aviation Underwriters, Inc., is granted, the complaint is dismissed insofar as asserted against that defendant, the declaration that the defendant United States Aviation Underwriters, Inc., does not have a duty to the plaintiff to insure, indemnify, defend, and hold it harmless in the underlying Federal action is reinstated, and the order and judgment dated June 22, 1999, is modified accordingly; and it is further,

Ordered that the defendant United States Aviation Underwriters, Inc., is awarded one bill of costs.

The Supreme Court erred in denying the motion of the defendant United States Aviation Underwriters, Inc., for summary judgment inasmuch as the insurance procurement clause under which the plaintiff seeks a defense was void and unenforceable pursuant to General Obligations Law § 5-321 (see, Port Auth. v Evergreen Intl. Aviation, 275 AD2d 362 [decided herewith]; see also, A to Z Applique Die Cutting v 319 McKibbin St. Corp., 232 AD2d 512, 513; Radius, Ltd. v Newhouse, 213 AD2d 614, 615; Metropolitan Art Assocs. v Wexler, 118 AD2d 548). Bracken, J. P., Santucci, McGinity and Feuerstein, JJ., concur. [See 179 Mise 2d 674.]