Opinion
2021-00736
10-14-2021
WCC Builders, LLC, Plaintiff-Respondent, v. State Farm Fire and Casualty Company, Defendant, Endurance American Specialty Insurance Company, Defendant-Appellant. Index No. 652776/20 Appeal No. 14374
Smith Mazure, P.C., New York (Joel M. Simon of counsel), for appellant. Delahunt Law PLLC, Buffalo (Timothy E. Delahunt of counsel), for respondent.
Smith Mazure, P.C., New York (Joel M. Simon of counsel), for appellant.
Delahunt Law PLLC, Buffalo (Timothy E. Delahunt of counsel), for respondent.
Before: Kapnick, J.P., Singh, Shulman, Pitt, Higgitt, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about October 6, 2020, which, inter alia, denied defendant Endurance American Specialty Insurance Company's motion to dismiss the complaint as against it, unanimously affirmed, without costs.
In this insurance coverage declaratory judgment action, the court correctly denied Endurance's motion to dismiss the complaint in which plaintiff alleges that as an additional insured on the insurance policy Endurance issued to plaintiff's subcontractor, it is entitled to a defense and indemnification in an underlying negligence action brought against it by Consolidated Edison.
Plaintiff, in a prior quasi-judicial proceeding, took the position and obtained a favorable determination that the damage to the Con Ed property was not caused by construction activity. Despite that ruling, Con Ed subsequently filed the underlying action, again alleging that the damage was caused by construction activity, including work performed by plaintiff's subcontractors. Plaintiff's current action seeking additional insured coverage for its defense against that claim in the underlying action does not implicate the doctrine of judicial estoppel, as it does not involve plaintiff affirmatively advancing the position that Con Ed's damage was caused by construction activity, which would be a position contrary to the position it took in the prior proceeding (see Herman v 36 Gramercy Park Realty Assoc., LLC, 165 A.D.3d 405, 406 [1st Dept 2018], lv denied 33 N.Y.3d 1045 [2019]). Endurance advances no other basis for dismissal of plaintiff's complaint in this coverage action.