        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

245
CA 11-01485
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.


BOARD OF EDUCATION OF SOLVAY UNION FREE SCHOOL
DISTRICT, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

J.D. TAYLOR CONSTRUCTION CORPORATION, TURNER
CONSTRUCTION COMPANY, DEFENDANTS-RESPONDENTS,
AND QPK DESIGN, DEFENDANT-APPELLANT.
-----------------------------------------------
J.D. TAYLOR CONSTRUCTION CORPORATION,
THIRD-PARTY PLAINTIFF,

                    V

DAMACO WINDOW CONTRACTORS, INC., THIRD-PARTY
DEFENDANT-RESPONDENT,
AND KALWALL CORPORATION, THIRD-PARTY DEFENDANT.


SUGARMAN LAW FIRM, LLP, SYRACUSE (MATTHEW D. GUMAER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FERRARA, FIORENZA, LARRISON, BARRETT & REITZ, P.C., EAST SYRACUSE
(KATHERINE E. GAVETT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

SHEATS & ASSOCIATES, P.C., BREWERTON (JASON B. BAILEY OF COUNSEL), FOR
DEFENDANT-RESPONDENT J.D. TAYLOR CONSTRUCTION CORPORATION.

GOLDBERG SEGALLA LLP, SYRACUSE (KENNETH M. ALWEIS OF COUNSEL), FOR
DEFENDANT-RESPONDENT TURNER CONSTRUCTION COMPANY.


     Appeal from an order of the Supreme Court, Onondaga County (Brian
F. DeJoseph, J.), entered May 9, 2011. The order, among other things,
denied the motion of defendant QPK Design for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting those parts of defendant
QPK Design’s motion for summary judgment dismissing the third and
fourth cross claims of defendant Turner Construction Company against
it and as modified the order is affirmed without costs.

     Memorandum: We conclude that Supreme Court erred in denying
those parts of defendant QPK Design’s motion for summary judgment
dismissing the third and fourth cross claims of defendant Turner
Construction Company against it, for contractual indemnification and
                                 -2-                          245
                                                        CA 11-01485

breach of contract based on QPK Design’s failure to procure the
requisite insurance (cf. DiBuono v Abbey, LLC, 83 AD3d 650, 652-653;
Gillmore v Duke/Fluor Daniel, 221 AD2d 938, 939; see generally A & E
Stores, Inc. v U.S. Team, Inc., 63 AD3d 486). We therefore modify the
order accordingly. We reject the remaining contentions of QPK Design
for reasons stated by the court in its bench decision.




Entered:   March 16, 2012                      Frances E. Cafarell
                                               Clerk of the Court
