Opinion
15204-15204A Index No. 155759/20 Case No. 2021-03011
02-03-2022
WESCO INSURANCE COMPANY, Plaintiff–Respondent, v. RUTGERS CASUALTY INSURANCE COMPANY, Defendant–Appellant. Beach Lane Management, Inc., et al., Nonparty Respondents.
Miranda Slone Sklarin Verveniotis LLP, Mineola (Steven Verveniotis of counsel), for appellant. Kennedys CMK LLP, New York (Max W. Gershweir of counsel), for respondent.
Miranda Slone Sklarin Verveniotis LLP, Mineola (Steven Verveniotis of counsel), for appellant.
Kennedys CMK LLP, New York (Max W. Gershweir of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Gesmer, Kennedy, Pitt, JJ.
Judgment, Supreme Court, New York County (Lewis J. Lubell, J.), entered September 29, 2021, declaring that defendant has a duty to defend and indemnify Fives 160th LLC (Fives) in an underlying personal injury action, that defendant's coverage obligation is primary to plaintiff's coverage obligation, and that defendant must reimburse plaintiff for all costs reasonably incurred in defending and indemnifying Fives in the underlying action, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered August 9, 2021, which granted plaintiff's motion for summary judgment and denied defendant's motion to compel and preclude discovery, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff sufficiently authenticated the relevant policies and lease, which, as documents of independent legal significance, are not hearsay (see 830 Eighth Ave. LLC v. Global at 8th LLC, 198 A.D.3d 404, 152 N.Y.S.3d 310 [1st Dept. 2021] ).
Given that defendant's insured had an express duty to maintain the sidewalk outside its leased premises, and to indemnify the landlord, plaintiff's insured, in connection with that duty, it can be inferred that the underlying alleged accident on that sidewalk "arose out of" the maintenance of the sidewalk (see Maroney v. New York Cent. Mut. Fire Ins. Co., 5 N.Y.3d 467, 472, 805 N.Y.S.2d 533, 839 N.E.2d 886 [2005] ; Tower Ins. Co. of N.Y. v. Leading Ins. Group Ins. Co., Ltd., 134 A.D.3d 510, 21 N.Y.S.3d 240 [1st Dept. 2015] ).
Because the policies and lease are unambiguous, the court properly considered plaintiff's motion for summary judgment before discovery was complete.