Opinion
102711/2009.
Decided April 30, 2010.
On or about June 24, 2008, George and Elham Hanna commenced a personal injury action against numerous defendants, including plaintiff herein Bonded Waterproofing Agency, Inc. [hereinafter "Bonded"]. George Hanna alleges that he sustained serious injuries as a result of a trip and fall on cardboard at the premises located at 158-15 Liberty Avenue in Jamaica, New York. Bonded was named as a defendant because George Hanna alleged it, inter alia, performed work on the premises, namely, installation of drains, pumps and general waterproofing work in a negligent fashion contributing to the accident. Bonded thereafter sought coverage/indemnification, through its insurance carrier defendant National Indemnity Company [hereinafter "National"], for the claims asserted against it by the Hannas. On or about September 23, 2008, National denied coverage to Bonded on the basis of an exclusion in the policy which excluded coverage for work in the five boroughs of New York City. On or about May 20, 2009, Bonded filed a third party complaint against defendants Anderson-Bernard Agency, Inc. and Thomas Bernard [hereinafter collectively known as "Anderson/Bernard"], as the insurance broker who procured the policy, and defendant National.
Procedurally, the Court severed this action from the underlying personal injury action on November 18, 2009. Presently, defendants Anderson/Bernard and defendant National are both separately moving to dismiss the complaint as against them pursuant to CPLR §§ 3211 (a)(1) and (a)(7), and for summary judgment pursuant to CPLR § 3212.
By way of background, in or about March 2005, Bonded entered into a contract with Anderson/Bernard whereby they agreed to procure a commercial liability insurance policy for the waterproofing work Bonded performed. On or about March 3, 2005, Bonded obtained an insurance policy from defendant National Indemnity Company. This policy was renewed the following year and provided commercial liability insurance to Bonded from March 2006 through March 2007. The exclusions on both policy's read as follows:
EXCLUSION — DESIGNATED OPERATIONS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Description of Designated Operation(s):
Excluding and Construction Activities Performed in NYC's 5 Boroughs
The following exclusion is added to paragraph 2., Exclusions of COVERAGE A — BODILY INJURY AND PROPERTY DAMAGE LIABILITY (Section I — Coverages):
This insurance does not apply to "bodily injury" or "property damage" arising out of either the ongoing operations or operations included within the products-completed operations hazard described in the Schedule of this endorsement, regardless of whether such operations are conducted by you or on your behalf or whether the operations are conducted for yourself or others.
The following exclusion is added to paragraph 2., Exclusions of COVERAGE B — PERSONAL AND ADVERTISING INJURY LIABILITY (Section I — Coverages):
This insurance does not apply to damages because of personal and advertising injury arising out of the operations described in the Schedule of this endorsement, regardless of whether such operations are conducted by you or on your behalf or whether the operations are conducted for yourself or for others. As a result of the aforementioned exclusion, the defendants are now separately seeking to dismiss the plaintiff's complaint pursuant to CPLR §§ 3211 (a)(1) and (a)(7), and for summary judgment pursuant to CPLR § 3212.
With respect to defendants' motions to dismiss based upon documentary evidence, pursuant to CPLR § 3211 (a)(1), "a party may move for judgment dismissing one or more causes of action asserted against him on the ground that a defense is founded upon documentary evidence" (CPLR § 3211 [a][1]). Further, "a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" and "resolves all factual issues" ( City Line Rent a Car, Inc. v. Alfess Realty , 33 AD3d 835 , 835 [2d Dept. 2006][finding that where issues are not conclusively resolved by the evidence the matter should not be dismissed]; Kupersmith v. Winged Foot Golf Club , 38 AD3d 847 , 848 [2d Dept. 2007]; New York Community Bank v. Snug Harbor Square Venture, 299 AD2d 329, 329-30 [2d Dept. 2002]).
Additionally, pursuant to CPLR § 3211 (a)(7), defendants contends that plaintiff 's complaint fails to state a cause of action. "On a motion to dismiss a cause of action pursuant to CPLR § 3211 (a)(7), the court must accept as true the factual allegations of the complaint and accord the plaintiff all favorable inferences which may be drawn therefrom" ( Montes Corp. v. Charles Freihofer Baking Co. , 17 AD3d 330 , 330 [2d Dept. 2005]; City Line Rent a Car, Inc. v. Alfess Realty , 33 AD3d 835 , 835 [2d Dept. 2006]). "If the plaintiff can succeed upon any reasonable view of the allegations, the complaint may not be dismissed" ( Montes Corp. v. Charles Freihofer Baking Co. , 17 AD3d 330 , 330 [2d Dept. 2005]; General Cas. Ins. Co. v. Kerr Heating Products , 48 AD3d 512, 514 [2d Dept. 2008]).
Here, defendants Anderson/Bernard and National both provide evidence that there are no factual allegations contained in plaintiff's complaint which supports the conclusion that plaintiff was covered for work conducted in the five boroughs of New York City (CPLR § 3211[a][1]). However, in opposition, plaintiff has established that the defendants had previously provided coverage for work in the five boroughs and further, that they were aware of the work plaintiff conducted in New York City's five boroughs, as a result all the issues are not conclusively resolved by the documentary evidence provided ( City Line Rent a Car, Inc. v. Alfess Realty , 33 AD3d 835 , 836 [2d Dept. 2006]). In fact, plaintiff's evidence indicates that in its bid for the job involved in the underlying action it included a certificate of insurance (with the general contractor for the job listed as an additional insured) from the defendants which indicated coverage for the work on this jobsite located in Queens, New York. There are clear contradictions on the defendants' behalf as to whether they covered the plaintiff for the work in the five boroughs of New York City, given the contradictory actions and writings. Therefore factual issues remain which are unable to be resolved on a motion to dismiss and defendants' motions are denied with leave to renew after completion of discovery ( Montes Corp. v. Charles Freihofer Baking Co. , 17 AD3d 330 , 330-31 [2d Dept 2005]).
The Court notes that even considering these motions as summary judgment, rather than as motions to dismiss, not all factual issues are resolved which precludes granting defendants' motions on either ground.
Accordingly, it is
ORDERED that the defendant Anderson Bernard Agency, Inc., and Thomas Bernard's motion to dismiss is hereby denied in its entirety, with leave to renew after completion of discovery, and it is further
ORDERED that the defendant National Indemnity Co.'s motion for summary judgment is hereby denied in its entirety, with leave to renew after the completion of discovery, and it is further
ORDERED that any and all additional requests for relief are hereby denied, and it is further
ORDERED that all parties appear on May 12, 2010, for a compliance conference at 9:30 a.m.