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Viacom Inc. v. Philips Electronics North America Corp.3/15/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Defendant is not an insurer, and the contract of indemnity pursuant to which it is bound, strictly construed (see Hooper Assocs., Ltd. v AGS Computers, Inc., 74 NY2d 487, 491-492 ; Matter of Heimbach v Metro. Transp. Auth., 75 NY2d 387, 392 ), does not impose upon it a defense obligation comparable in breadth to that ordinarily borne by an insurer; its duty to defend is no broader than its duty to indemnify (see Brasch v Yonkers Constr. Co., 306 AD2d 508 ). Whether the claims for which indemnification is here sought fall within the parties' agreement is a matter of interpretation that will not necessarily be determined when the underlying personal injury claims are resolved, so dismissal at this juncture on the ground that the indemnification claims are premature is not warranted. Although the underlying complaints allege intentional misconduct, it is unclear whether plaintiff and its predecessor in interest will be found to have intended the consequences of such conduct, so that dismissal of the indemnification claims with respect to such conduct is also not warranted(see Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392, 400-401 ; Hertz Corp. v Govt. Empl. Ins. Co., 250 AD2d 181, 185-186 , lv dismissed 93 NY2d 140 ).
We have considered the parties' other contentions for affirmative relief and find them unavailing.
M-490& M-558 Viacom Inc. v Philips Electronics, etc.
Motions seeking leave to strike reply brief and to supplement record denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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