Queens Office Tower Associates v. General Mills Restaurant, Inc.

—Order, Supreme Court, New York County (Carol Arber, J.), entered on or about August 20, 1996, which, upon reargument, granted defendants’ motions for summary judgment dismissing the complaint as barred by release, unanimously modified, on the law, to reinstate the complaint as against defendant Liberty Mutual Insurance Company, and otherwise affirmed, without costs.

The underlying action arises out of a slip and fall on the sidewalk outside the restaurant owned by defendant General Mills Restaurant, Inc., doing business as Red Lobster, which had leased the premises from plaintiff Queens Office Tower Associates. This action seeks, inter alia, a declaration that, under the lease, General Mills and its insurer, defendant Liberty, owed Queens Office a duty to defend it in the underlying action and to indemnify it and its insurer, plaintiff Landmark, for the cost of the defense and the amount paid in settlement. While *172the motion court properly granted summary judgment dismissing the complaint to the extent of any claims asserted against General Mills based on the stipulation entered into between the parties in the underlying action, summary judgment should not have been granted with respect to the claim of Landmark insofar as it seeks a declaration against Liberty Mutual with respect to Liberty’s coverage and defense obligations to Queens Office as an additional insured under the Liberty policy. The record raises factual issues in this regard, and thus neither Landmark nor Liberty established an entitlement to summary judgment. Concur—Ellerin, J. P., Williams, Tom and Mazzarelli, JJ.