Opinion
May 26, 2000.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 8, 1999, which denied third-party defendant National Restoration Corporation's motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.
Frederick B. Simpson, for plaintiff-respondent.
Patrick J. McCreesh, for defendant-appellant.
Before: Rosenberger, J.P., Williams, Mazzarelli, Rubin, Friedman, JJ.
The commercial general liability insurance policy procured by the general contractor, third-party plaintiff New York City School Construction Authority (NYCSCA), which provided general liability coverage to all subcontractors, including third-party defendant National Restoration Corporation (NRC), contained an endorsement providing, "[w]e waive any right of recovery we may have against [the named insured] because of payments we make for injury or damages arising out of `your work' done under a contract with that person or organization". Bodily injury to an employee of the insured arising out of and in the course of employment by the insured is specifically excluded under the subject policy issued by the AIU Insurance Company. NRC was required to and did maintain its own worker's compensation coverage through a separate policy and AIU has disclaimed coverage to NRC with respect to this suit.
The motion court previously held, and NRC has not disputed, that the anti-subrogation rule does not bar NYSCA's third-party complaint since the AIU policy does not cover NYSCA and NRC for the same risks arising out of plaintiff's accident (see, Rosato v. Koch Erecting Co., 865 F. Supp. 104). We now affirm the motion court's holding that the waiver of subrogation endorsement in the AIU policy does not bar the third-party complaint. The waiver endorsement modifies a subrogation clause in the AIU policy whereby the insurer asserted subrogation rights to "any payment we have made under this Coverage Part" (emphasis added). "[A] waiver of subrogation clause cannot be enforced beyond the scope of the specific context in which it appears" (Kaf-Kaf, Inc. v. Rodless Decorations, Inc., 90 N.Y.2d 654, 660). Here, the endorsement, by its express terms, modifies the insurer's subrogation rights only to the extent such claims are covered under the policy. It is undisputed that NRC is not covered by the AIU policy with respect to NRC's employee's injuries, for which NRC is indemnified by worker's compensation, and therefore, the waiver endorsement is inapplicable to bar the third-party complaint (S.S.D.W. Co. v. Risk Waterproofing Co., Inc., 76 N.Y.2d 228; cf., Lim v. Atlas Gem Erectors Co., 225 A.D.2d 304).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.