206 East 95th Street Associates v. Insurance of State of Pennsylvania

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered October 20, 1995, which granted defendant Tishman summary judgment and ordered defendant M&A to indemnify defendant Tishman for any judgment that may be obtained against it in the underlying litigation to a maximum of $5,000,000, unanimously modified, on the law, to the extent of also directing defendant M&A to provide a defense to defendant Tishman, and otherwise affirmed, without costs.

The subject language, even if drafted inartfully, does not create an ambiguity, since the parties’ intent is discernable (see, Calce v Futterman, 197 AD2d 490 , lv denied 83 NY2d 755 ). Nor can the insurance rider reasonably "be parsed in two different, equally logical ways” (Delaware Otsego Corp. v Niagara Fire Ins. Co., 192 AD2d 911 , 912, lv dismissed 82 NY2d 705 ). A "determination with respect to liability for the contract breach need not await a final determination as to the underlying liability” (Sp encer v B.A. Painting Co., 224 AD2d 307 ). Further, "[t]he penalty for breaching this agreement to procure such insurance is to be liable for all resulting damages”, and such "damages include costs of defending a third-party suit” (Morel v City of New York, 192 AD2d 428 , 429). We have considered defendant M&A Plumbing’s remaining arguments and find them to be without merit. Concur—Milonas, J. P., Wallach, Kupferman, Ross and Williams, JJ.