W. 64th St., LLC v. Axis U.S. Ins.

Full title: WEST 64TH STREET, LLC and GLENWOOD MANAGEMENT, Plaintiffs, v. AXIS U.S…

Court: Supreme Court of the State of New York, New York County

Date published: Jan 17, 2008

2008 N.Y. Slip Op. 30146 (N.Y. Sup. Ct. 2008)

Opinion

0105557/2007.

January 17, 2008.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] BARBARA R. KAPNICK, Judge.

DECISION/ORDER

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] BARBARA R. KAPNICK, Judge.

This declaratory judgment action arises out of an underlying personal injury (Labor Law) action, Wilson Silva, Blanca Silva and Marek Wlodarczyk v. West 64 ^th Street, LLC and Glenwood Management, Index No. 15485/06, pending in the Supreme Court, Queens County. Plaintiff West 64^th Street, LLC ("West 64^th ") claims herein that it is an 'additional insured' under a policy of insurance issued by defendants Axis U.S. Insurance, Axis Surplus Insurance Company and Axis Specialty Insurance Company (collectively, "Axis") to Remco Maintenance, LLC ("Remco").

Defendant Axis now moves for an order:

(1) pursuant to CPLR § 3211(a)(1) and (7) dismissing the Complaint and any and all cross-claims against them; and

(2) pursuant to CPLR § 3211(c) declaring, pursuant to CPLR § 3001, that Axis has no obligation to defend or indemnify West 64^th and Glenwood Management ("Glenwood"), in connection with the claims asserted in the underlying action.

Under the policy, an "additional insured" is defined as "[a]ny person or organization that the insured is required by written contract to name as an additional insured".¹

1 Plaintiff speculates that this endorsement may not, in fact, be contained in the subject policy, because a cover sheet erroneously contains the reference number to an alternative endorsement. Axis, however, has submitted a Supplemental Affidavit from Lisa A. Manzer, a Senior Claims Specialist, verifying that the cited endorsement was, in fact, part of the policy. Moreover, there is no evidence that the alternative endorsement referenced on the cover sheet would confer "additional insured" status upon plaintiff.

Axis contends that West 64^th is not an additional insured under the policy because Remco did not agree in a written contract to procure insurance naming West 64^th as an additional insured. See, National Abatement Corp. v. National Union Fire Ins. Co. of Pittsburgh, PA, 33 A.D.3d 570 (1^st Dep't 2006).

Plaintiffs oppose the motion on the grounds: (i) that it is premature because there has been insufficient discovery; (ii) Axis has never formally disclaimed coverage; and (iii) Axis should be estopped from disclaiming coverage because the Certificate of Liability Insurance written by the Ruben Group, who plaintiffs claim may be revealed during discovery to be Axis' 'agent', names Remco as insured and endorses West 64^th and Glenwood as additional insureds.

However, there is no requirement under CPLR § 3420(d) that an insurer timely disclaim coverage where, as here, no coverage exists in the first instance. See, Zappone v. Home Ins. Co., 55 N.Y.2d. 131 (1982); National Abatement Corp. v. National Fire Ins. Co. of Pittsburgh, supra at 571.

Moreover, a certificate of insurance, by itself, is insufficient to raise a factual issue as to the existence of coverage. See, American Motorist Ins. Co. v. Superior Acoustics, 277 A.D.2d 97 (1st Dep't 2000).

Finally, "[i]n general, an insurance broker is considered the agent of the insured, not the insurance company". MTO Associates, Ltd. Partnership v. Republic — Franklin Ins. Co., 21 A.D.3d 1008 (2nd Dep't 2005). See also, Temple Const. Corp. v. Sirius America Ins. Co., 40 A.D.3d 1109 (2nd Dep't 2007). In the instant case, there is no indication that Remco's broker acted as the agent for Axis or that it otherwise had the authority to bind the carrier. See, Tribeca Broadway Associates, LLC v. Mount Vernon Fire Ins. Co., 5 A.D.3d 198 (1st Dep't 2004).

Accordingly, based on the papers submitted and the oral argument held on the record on October 17, 2007 and November 7, 2007, Axis' motion is granted, and it is hereby

ORDERED that the Clerk shall enter judgment dismissing the Complaint and all cross-claims against defendants Axis U.S. Insurance, Axis Surplus Insurance Company and Axis Specialty Insurance Company with prejudice and without costs or disbursements, and it is further

ORDERED and DECLARED that Axis U.S. Insurance, Axis Surplus Insurance Company and Axis Specialty Insurance Company have no obligation to defend and/or indemnify West 64th Street, LLC and Glenwood Managment in connection with the underlying action.

This constitutes the decision and order of this Court.