Opinion
No. 2021-05356 Index No. 609883/17
05-29-2024
J & Z Mechanical/Construction Corp., respondent, v. Metropolis HVAC Contractors, Inc., defendant Wesco Insurance Company, appellant.
Gunnercooke U.S. LLP, New York, NY (Max W. Gershwier of counsel), for appellant. Smith, Sovik, Kendrick & Sugnet, P.C., White Plains, NY (John D. Goldman of counsel), for respondent.
Gunnercooke U.S. LLP, New York, NY (Max W. Gershwier of counsel), for appellant.
Smith, Sovik, Kendrick & Sugnet, P.C., White Plains, NY (John D. Goldman of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, CARL J. LANDICINO, JJ.
DECISION & ORDER
In an action, inter alia, for a judgment declaring that the defendant Wesco Insurance Company is obligated to defend and indemnify the plaintiff in an underlying third-party action entitled 421 Kent Development, LLC v Centrifugal Associates Group, LLC, commenced in the Supreme Court, Kings County, under Index No. 13480/15, the defendant Wesco Insurance Company appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered July 20, 2021. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment declaring that the defendant Wesco Insurance Company is obligated to defend and indemnify the plaintiff in the underlying third-party action and denied the cross-motion of the defendant Wesco Insurance Company, in effect, for summary judgment declaring that it is not obligated to defend and indemnify the plaintiff in the underlying third-party action.
ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the defendant Wesco Insurance Company is obligated to defend and indemnify the plaintiff in the underlying third-party action entitled 421 Kent Development, LLC v Centrifugal Associates Group, LLC, commenced in the Supreme Court, Kings County, under Index No. 13480/15.
In August 2015, Robert Crutch, an employee of the defendant Metropolis HVAC Contractors, Inc. (hereinafter Metropolis), was injured while working on a construction project at a residential building owned by 421 Kent Development, LLC (hereinafter 421 Kent). In November 2015, Crutch commenced a personal injury action against 421 Kent and Wonder Works Construction Corp. (hereinafter Wonder Works), the alleged construction manager on the project. 421 Kent and Wonder Works thereafter commenced a third-party action against, among others, the plaintiff J & Z Mechanical/Construction Corp. (hereinafter J & Z), seeking, inter alia, contractual indemnification. J & Z had been subcontracted to perform work on the project, and J & Z, in turn, subcontracted all of that work to Metropolis. The defendant Wesco Insurance Company (hereinafter Wesco) issued a commercial general liability insurance policy to Metropolis.
J & Z commenced this action, among other things, for a judgment declaring that Wesco is obligated to defend and indemnify J & Z in the underlying third-party action. After joinder of issue, J & Z moved, inter alia, for summary judgment on that cause of action, and Wesco cross-moved, in effect, for summary judgment declaring that it is not obligated to defend and indemnify J & Z in the underlying third-party action. By order entered July 20, 2021, the Supreme Court, among other things, granted that branch of J & Z's motion and denied Wesco's cross-motion. Wesco appeals.
As the Supreme Court correctly concluded, J & Z established its prima facie entitlement to the declaration sought. In the subcontract between Metropolis and J & Z, those parties agreed that Metropolis would defend and indemnify J & Z against claims attributable to bodily injury arising from Metropolis's negligent acts or omissions and that J & Z would be included in Metropolis's commercial general liability insurance policy as an additional insured. It is undisputed that J & Z is an additional insured under the policy issued by Wesco to Metropolis in light of this written subcontract (see Mecca Contr., Inc. v Scottsdale Ins. Co., 140 A.D.3d 714, 716).
Wesco contends nonetheless that the pending causes of action in the underlying third-party complaint are excluded from coverage under the "Contractual Liability" exclusion, which excludes from coverage "'Bodily Injury'... for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement." However, J & Z demonstrated, prima facie, the applicability of the exception to this exclusion for "insured contract[s]," in which "tort liability of another party to pay for 'bodily injury'" is assumed. Coverage for insured contracts, which was available to the named insured, was also available to J & Z as an additional insured (see generally Pecker Iron Works of N.Y., Inc. v Traveler's Ins. Co., 99 N.Y.2d 391, 393; Mecca Contr., Inc. v Scottsdale Ins. Co., 140 A.D.3d at 716).
Since, in opposition to this prima facie showing, Wesco failed to raise a triable issue of fact as to whether the contractual liability exclusion applied, the Supreme Court properly granted that branch of J & Z's motion which was for summary judgment declaring that Wesco is obligated to defend and indemnify J & Z in the underlying third-party action and properly denied Wesco's cross-motion, in effect, for summary judgment declaring that Wesco is not so obligated.
Wesco's remaining contention is without merit.
Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that Wesco is obligated to defend and indemnify the plaintiff in the underlying third-party action entitled 421 Kent Development, LLC v Centrifugal Associates Group, LLC, commenced in the Supreme Court, Kings County, under Index No. 13480/15 (see Lanza v Wagner, 11 N.Y.3d 317, 334).
IANNACCI, J.P., CHAMBERS, CHRISTOPHER and LANDICINO, JJ., concur.