| New York State Dormitory Auth. v Scottsdale Ins. Co. |
| 2006 NYSlipOp 01949 |
| March 17, 2006 |
| Appellate Division, Fourth Department |
| New York State Dormitory Authority, Appellant, v Scottsdale Insurance Company et al., Respondents, et al., Defendant. |
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Appeal from a judgment of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered April 19, 2005. The judgment, among other things, adjudged that defendant Scottsdale Insurance Company is obligated to provide coverage to plaintiff on a co-insurance basis with General Star Indemnity Company.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by amending the declaration to provide as follows: "It is ADJUDGED and DECLARED that defendant Scottsdale Insurance Company is obligated to provide sole primary coverage to defend and to indemnify plaintiff up to $100,000 and is obligated to provide co-primary coverage with General Star Indemnity Company with respect to any amount in excess of $100,000 and as modified the judgment is affirmed without costs."
Memorandum: We agree with Supreme Court that the policies issued by defendant Scottsdale Insurance Company (Scottsdale) and General Star Indemnity Company (General Star) are co-primary because the policies provide coverage for the same loss and contain identical "other insurance" clauses. We further conclude, however, that the court erred in declaring that Scottsdale is obligated to provide coverage to plaintiff on a co-insurance basis with General Star "only after the exhaustion of any self-insured retention or other deductible amounts." Rather, we conclude that Scottsdale is obligated to provide sole primary coverage to defend and to indemnify plaintiff up to $100,000, the amount recited in the self-insured retention clause contained in the General Star policy, and is obligated to provide co-primary coverage with General Star with respect to any amount in excess of $100,000. We therefore modify the judgment accordingly. Present—Scudder, J.P., Kehoe, Martoche, Smith and Pine, JJ.