Opinion
10-27-2016
TUDOR INSURANCE COMPANY, Plaintiff–Appellant, v. Narayan SUNDARESEN, et al., Defendants–Respondents, Everest Scaffolding, Inc., et al., Defendants.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Richard J. Nicolello of counsel), for appellant. Marco & Sitaras, PLLC, New York (George Marco of counsel), for respondents.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Richard J. Nicolello of counsel), for appellant.
Marco & Sitaras, PLLC, New York (George Marco of counsel), for respondents.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered April 9, 2015, which denied plaintiff insurer's motion for summary judgment declaring that it has no duty to defend or indemnify the Sundaresen defendants in the underlying personal injury action, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment declaring that plaintiff has no duty to defend or indemnify the Sundaresen defendants in the underlying personal injury action.
The “Contractor or Subcontractor Limitation” endorsement within the insurance policy issued by plaintiff bars coverage of the underlying personal injury action. That endorsement bars coverage of “bodily injury” to, among others, “a contractor or subcontractor of the insured” (the exclusion). The evidence shows that the injured worker who brought the underlying action was hired by either the Sundaresen defendants (the insureds and owners of the premises) or defendant Excell (the general contractor). Accordingly, he was a “contractor or subcontractor of the insured” for the purposes of the exclusion. That the injured worker might be an independent contractor does not preclude him from being considered a contractor or subcontractor for purposes of the exclusion, since the terms “contractor” and “subcontractor” are not mutually exclusive and can include independent contractors (see Century Surety Co. v. Franchise Contractors, LLC, 2016 WL 1030134, *8, 2016 U.S. Dist LEXIS 31271, *21–22 [S.D.N.Y., March 10, 2016, No. 14–Civ–277 (NRB) ], citing Matter of Johnson v. Briggs, 34 A.D.2d 1068, 1068–1069, 312 N.Y.S.2d 637 [3d Dept.1970] ).
We have considered the Sundaresen defendants' remaining arguments and find them unavailing.
ACOSTA, J.P., RENWICK, SAXE, FEINMAN, KAHN, JJ., concur.