OLD REPUBLIC CONSTRUCTION INSURANCE AGENCY OF NEW YORK, INC., plf-res, v. FAIRMONT INSURANCE BROKERS, LTD., def-ap

10562. OLD REPUBLIC CONSTRUCTION INSURANCE AGENCY OF NEW YORK, INC., plf-res, v. FAIRMONT INSURANCE BROKERS, LTD., def-ap — Babchik & Young LLP, White Plains (Jack Babchik of counsel), for ap — Cornell Grace, P.C., New York (Keith D. Grace of counsel), for res ——Appeal from order, Supreme Court, New York County (Cynthia S. Kern, J.), entered August 6, 2012, which granted plaintiff’s motion for summary judgment on the issue of liability, and denied defendant’s cross motion for summary judgment, deemed appeal from judgment, same court and Justice, entered February 7, 2013, awarding plaintiff damages, (see CPLR 5501[c]), and, so considered, said judgment unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded for further proceedings consistent herewith.

Under the parties’ Producer Agreement, pursuant to which defendant procured insurance for its clients through plaintiff, defendant is obligated to pay all insurance premiums, including those that plaintiff retroactively increased upon audit. Section 5.3 of the agreement states that “[defendant] guarantees to pay [plaintiff] all premium [sic] … on any insurance placed or arranged for [defendant] by [plaintiff], irrespective of whether [defendant] has collected such premiums . . . from any customer or client of [defendant]” (emphasis added). Contrary to defendant’s contention, the term “ all premium” does not refer to the “initial premium” only. Accordingly, the court properly granted plaintiff summary judgment as to defendant’s liability for the retroactive increases.