LONG ISLAND LIGHTING CO. v. AM. EMPLOYERS INS. CO.


131 A.D.2d 733 (1987)

Long Island Lighting Company et al., Respondents-Appellants, v. American Employers Insurance Company, Appellant-Respondent, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 22, 1987


Ordered that the appeal and cross appeal from the order dated May 8, 1986, are dismissed, without costs or disbursements, as no appeal lies from an order denying reargument, and it is further,

Ordered that the order dated January 8, 1986, is reversed insofar as cross-appealed from, on the law, without costs or disbursements, and the words "by reason of being held liable for the acts or omissions of Cablevision Systems or its employees" are deleted from clause "(3)" of the decretal paragraph thereof; and it is further,

Ordered that the order dated January 8, 1986, is affirmed insofar as appealed from, without costs or disbursements.

Although American Employers designated its motion as one for "reargument or renewal", the motion alleged no new or additional facts which were not before the Supreme Court, Nassau County, on the prior motion. Therefore, its motion was in fact a motion to reargue (see, Ginsberg v Ginsberg, 104 A.D.2d 482; Alessi v County of Nassau, 100 A.D.2d 561, 562). The plaintiffs' motion was specifically designated as one for reargument. No appeal lies from the denial of reargument (Klein v Daskal, 112 A.D.2d 268, 269; Ginsberg v Ginsberg, supra).

There was no reason in this case for the Supreme Court, Nassau County, to address the validity of the indemnity clauses in the pole attachment agreements between the plaintiffs and Cablevision, since, even if these clauses were void as against public policy or by reason of statute, and Cablevision had no obligation to purchase insurance which would cover the plaintiffs as additional insureds for liability arising as a result of work done pursuant to the pole attachment agreements, the fact remains that Cablevision did procure such a policy from American Employers. There is no evidence in the record which indicates that American Employers issued this policy involuntarily, or without the full knowledge and understanding, as expressed in the certificates of insurance, that it would be obligated to indemnify the plaintiffs against liability arising out of any claim for personal injuries resulting from the "erection, maintenance, presence use or removal of Cablevision's attachments" to the plaintiffs' utility poles.

Thus, American Employers' duty to pay any judgment rendered against the plaintiffs in the underlying personal injury action is enforceable, regardless of whether or not the reason for which the plaintiffs are held liable is their own negligence or that of Cablevision (see, Sentry Ins. Co. v National Steel Corp., 147 Mich.App. 214, 382 N.W.2d 753, 756-757; cf., Austro v Niagara Mohawk Power Corp., 66 N.Y.2d 674, 676; Board of Educ. v Valden Assocs., 46 N.Y.2d 653, 657; Hogeland v Sibley, Lindsay & Curr Co., 42 N.Y.2d 153, 161; Long Is. R. R. Co. v Interboro Mut. Indem. Ins. Co., 84 A.D.2d 809). Accordingly, the order dated January 8, 1986, must be reversed insofar as cross-appealed from by the plaintiffs to reflect American Employers' unconditional obligation to indemnify the plaintiffs in the underlying action.


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