
    Vincent E. Iorio, Inc., Appellant-Respondent, v St. Vincent’s Medical Center of Richmond et al., Respondents-Appellants.
   In an action inter alia by a builder to recover from the owner of certain property and its insurer for loss of earnings resulting from the partial destruction, by fire, of a building under construction, (1) plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County, entered November 6, 1975, as denied its motion for partial summary judgment and (2) defendants cross-appeal, as limited by their brief, from so much of the same order as denied their application for summary judgment. Order affirmed, without costs or disbursements. The decision of Mr. Justice Garbarino in the Richmond County action does not bar litigation in the instant action of the issue of whether the construction contract required defendant, St. Vincent’s Medical Center of Richmond, to obtain loss of earnings insurance for plaintiff. Plaintiff’s motion for partial summary judgment was therefore properly denied. We also believe that Special Term properly denied defendants’ application for summary judgment since a trial is necessary to determine the intent of the parties. Martuscello, Acting P. J., Latham, Cohalan, Rabin and Titone, JJ., concur.  