LANCER INSURANCE COMPANY, PLAINTIFF-RESPONDENT-ap, v. LOUIS PROVENZANO, INC., DEFENDANT THIRD-PARTY PLAINTIFF-res-ap, CYRUS JENNINGS, RESPONDENT def; YANKEE BROKERAGE, INC., ET AL., THIRD-PARTY DEFENDANTSAPPELLANTS-res — (INDEX NO. 12107/08)In an action for a judgment declaring, inter alia, that the plaintiff is not obligated to defend or indemnify the defendant third-party plaintiff and the defendant Cyrus Jennings in an underlying action entitled LoDuca v. Louis Provenzano, Inc., commenced in the Supreme Court, Kings County, under Index No. 729/08, and a related third-party action, inter alia, for a judgment declaring that the thirdparty defendants are obligated to indemnify the defendant third-party plaintiff in the underlying action to the extent the plaintiff is not obligated to indemnify the defendant third-party plaintiff, the third-party defendants appeal from so much of an order of the Supreme Court, Nassau County (Parga, J.), entered October 11, 2011, as denied their cross motion, in effect, for summary judgment dismissing the third-party causes of action, in effect, to recover damages for negligence and breach of contract and declaring that they are not obligated to indemnify the defendant third-party plaintiff in the underlying action or, alternatively, pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint, the plaintiff cross-appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment declaring, among other things, that it is not obligated to defend or indemnify the defendant third-party plaintiff and the defendant Cyrus Jennings in the underlying action, and the defendant third-party plaintiff cross-appeals, as limited by its brief, from so much of the same order as denied that branch of its motion which was for summary judgment declaring that the thirdparty defendant Yankee Brokerage, Inc., is obligated to indemnify it in the underlying action and denied its cross motion for summary judgment declaring that the plaintiff is obligated to defend and indemnify it in the underlying action.
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the third-party defendants’ cross motion which was, in effect, for summary judgment dismissing the third-party causes of action, in effect, to recover damages for negligence and breach of contract and declaring that they are not obligated to indemnify the defendant third-party plaintiff in the underlying action, and substituting therefor a provision granting that branch of that cross motion, and (2) by deleting the provision thereof denying the defendant third-party plaintiff’s cross motion for summary judgment declaring that the plaintiff is obligated to defend and indemnify it in the underlying action, and substituting therefor a provision granting that cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the third-party defendants payable by the defendant third-party plaintiff, and one bill of costs to the defendant third-party plaintiff payable by the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiff is obligated to defend and indemnify the defendant thirdparty plaintiff in the underlying action and that the third-party defendants are not obligated to indemnify the defendant third-party plaintiff in the underlying action.
