Opinion
September 30, 1994
Appeal from the Supreme Court, Erie County, Glownia, J.
Present — Green, J.P., Pine, Lawton, Callahan and Doerr, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiffs were hired to erect the exterior walls of a building constructed by Benderson Development Company (Benderson), the general contractor. When one of the partially-completed walls collapsed, Benderson commenced an action against plaintiffs, alleging that they "[f]ailed to perform their work in a good and workmanlike manner" and "performed their * * * work in a careless and negligent manner."
Supreme Court properly granted judgment declaring that defendant has no obligation to defend or indemnify plaintiffs in the underlying action commenced by Benderson. Defendant met its burden of demonstrating "that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation" (International Paper Co. v. Continental Cas. Co., 35 N.Y.2d 322, 325, quoted in Hollenbeck v. Aetna Cas. Sur. Co., 195 A.D.2d 981, 982-983). The allegations in the Benderson complaint fall within the exclusions of coverage for property damage to "[t]hat particular part of real property on which you * * * are performing operations, if the `property damage' arises out of those operations" or to "[t]hat particular part of any property that must be restored, repaired or replaced because `your work' was incorrectly performed on it" (see, Fuller Co. v. United States Fid. Guar. Co., 200 A.D.2d 255; William Crawford, Inc. v. Travelers Ins. Co., 838 F. Supp. 157, affd 23 F.3d 663; see also, Highlands House Cleaning Serv. v American Guar. Liab. Ins. Co., 96 A.D.2d 702). We reject plaintiffs' contention that the allegation of negligent performance in Benderson's second cause of action transforms that cause of action into one sounding in negligence (see, Fuller Co. v. United States Fid. Guar. Co., supra; Parkset Plumbing Heating Corp. v. Reliance Ins. Co., 87 A.D.2d 646). Because this is a declaratory judgment action, however, the court erred in dismissing the complaint (see, Tumminello v. Tumminello, 204 A.D.2d 1067).
Finally, we note that the contentions of plaintiffs on appeal are different from their argument in opposition to defendant's motion at Supreme Court. Plaintiffs' contentions may be considered, however, because their brief does not allege new facts, but rather raises legal arguments, "which appeared upon the face of the record and which could not have been avoided by [defendant] if brought to [its] attention at the proper juncture" (Matter of Knickerbocker Field Club v. Site Selection Bd., 41 A.D.2d 539, 540; accord, Gerdowsky v. Crain's N.Y. Bus., 188 A.D.2d 93, 97; Block v. Magee, 146 A.D.2d 730, 732).