Opinion
11 Index No. 654696/20 Case No. 2022–01897
04-11-2023
SKANSKA USA BUILDING INC., Plaintiff–Appellant, v. HARLEYSVILLE INSURANCE COMPANY OF NEW YORK, et al., Defendants–Respondents.
Fabiani Cohen & Hall, LLP, New York (Janet P. Ford of counsel), for appellant. Vigorito, Barker, Patterson, Nichols & Porter, LLP, Valhalla (Adonaid C. Medina of counsel), for respondents.
Fabiani Cohen & Hall, LLP, New York (Janet P. Ford of counsel), for appellant.
Vigorito, Barker, Patterson, Nichols & Porter, LLP, Valhalla (Adonaid C. Medina of counsel), for respondents.
Webber, J.P., Oing, Singh, Gonza´lez, Mendez, JJ.
Order, Supreme Court, New York County (Arlene Bluth, J.), entered on or about April 13, 2022, which denied plaintiff's motion for partial summary judgment declaring that defendants were obligated to defend plaintiff and its indemnitees in an underlying action, unanimously affirmed, with costs.
The court properly concluded that the wrap-up exclusion in defendant's policy applied to preclude coverage to plaintiff, an additional insured, in the underlying action. The exclusion provides that coverage "does not apply to ‘bodily injury’ ... arising out of ... your ongoing operations ... when a consolidated (wrap-up) insurance program has been provided by the prime contractor/project manager or owner of the construction project in which you are involved." The policy defines "you" and "your" as "the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy." Thus, "you" and "your" refers to Fred Geller Electrical, Inc. (Geller), the named insured on the policy. Because the underlying accident arose out of Geller's ongoing operations, and it is undisputed that a wrap-up insurance program had been provided for the construction project, the wrap-up exclusion was triggered, precluding coverage (see Structure Tone, Inc. v. National Cas. Co., 130 A.D.3d 405, 406, 13 N.Y.S.3d 52 [1st Dept. 2015] ). Contrary to plaintiff's contention, Geller need not have actually enrolled in the wrap-up insurance program in order for the exclusion to apply (see Structure Tone, Inc. v. National Cas. Co., 2014 N.Y. Slip Op. 30484[U], 2014 WL 840408 [Sup. Ct., N.Y. County 2014], affd as mod 130 A.D.3d at 405, 13 N.Y.S.3d 52 [1st Dept. 2015] ).
However, a triable issue of fact exists as to whether defendant timely disclaimed coverage (see Insurance Law § 3420[d][2] ). The timeliness of a disclaimer "generally presents a question of fact unless the basis for denying coverage was or should have been readily apparent before the onset of the delay" ( City Univ. of N.Y. v. Utica First Ins. Co., 211 A.D.3d 600, 600, 181 N.Y.S.3d 525 [1st Dept. 2022] [internal quotation marks omitted]). Plaintiff failed to show that the existence of the wrap-up insurance program was readily apparent to defendants ( id. ; cf. Munoz v. City of New York, 95 A.D.3d 648, 648, 943 N.Y.S.2d 536 [1st Dept. 2012] ; GPH Partners, LLC v. American Home Assur. Co., 87 A.D.3d 843, 844, 929 N.Y.S.2d 131 [1st Dept. 2011] ). In any event, defendants raised issues of fact regarding the necessity of an investigation and the reasonableness of the delay in denying coverage.