| Wilson v Sirius Am. Ins. Co. |
| 2007 NY Slip Op 07691 [44 AD3d 754] |
| October 9, 2007 |
| Appellate Division, Second Department |
| Stephen Wilson et al., Respondents, v Sirius AmericaInsurance Company, Appellant. |
—[*1] Sobo & Sobo, LLP, Middletown, N.Y. (Gregory M. Sobo of counsel), forrespondents.
In an action pursuant to Insurance Law § 3420 (a) (2) to recover an unsatisfiedjudgment against the defendant's insured, the defendant appeals from an order of the SupremeCourt, Orange County (Lubell, J.), entered July 5, 2006, which granted the plaintiffs' motion forsummary judgment and denied its cross motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, the plaintiffs' motion for summaryjudgment is denied, and the defendant's cross motion for summary judgment dismissing thecomplaint is granted.
The plaintiff Stephen Wilson was injured at a construction site where he was employed as aforeman for a plumbing subcontractor. He and his wife commenced an action (hereinafter theunderlying action) against the general contractor, K.J. Gold, LLC (hereinafter KJ), asserting, interalia, causes of action predicated on violations of Labor Law §§ 200 and 241 (6). KJ'sinsurer, the defendant Sirius America Insurance Company, disclaimed coverage based on anexclusion contained in endorsement form SAIC 022 to the Commercial General Liability policyissued to KJ (hereinafter SAIC 022). In relevant part, the endorsement excluded coverage for"bodily injury" arising out of work performed on behalf of KJ by a subcontractor "when there isno prior written and signed contract entered into between [KJ] and the . . .subcontractor . . . requiring the . . . subcontractor . . . toindemnify and hold harmless [KJ] in the event of a loss, including any [*2]loss suffered by an employee of the . . .subcontractor." The defendant maintains, and the plaintiffs do not dispute, that there was nowritten agreement between KJ and the injured plaintiff's employer.
KJ ultimately defaulted in the underlying action and, after an inquest, judgment was enteredin the plaintiffs' favor. Thereafter, the plaintiffs commenced this action to recover on thejudgment. The Supreme Court granted the plaintiffs' motion for summary judgment on theground that SAIC 022 violated General Obligations Law § 5-322.1 and, therefore, wasvoid as against public policy, and denied the defendant's cross motion for summary judgmentdismissing the complaint. We reverse.
Contrary to the plaintiffs' contention, SAIC 022 does not violate General Obligations Law§ 5-322.1 (1), which, by its own terms, "shall not affect the validity of any insurancecontract, workers' compensation agreement or other agreement issued by an admitted insurer."Had the insured in this case actually obtained from the third-party subcontractor thebroadly-worded indemnification agreement contemplated by SAIC 022, we recognize that theindemnification agreement itself, under certain circumstances, would have been void underGeneral Obligations Law § 5-322.1 (see Itri Brick & Concrete Corp. v Aetna Cas. &Sur. Co., 89 NY2d 786 [1997]; Brown v Two Exch. Plaza Partners, 76 NY2d 172[1990]; Alesius v Good Samaritan Hosp.Med. & Dialysis Ctr., 23 AD3d 508 [2005]). Significantly, however, the invalidity ofthe underlying indemnity agreement would not have relieved the carrier of its obligation toprovide coverage to its insured under the terms of the policy. Rather, it would only have affectedthe carrier's ability, as subrogee of its insured, subsequently to seek enforcement of theindemnification provision against the third-party subcontractor.
In this case, however, KJ never entered into a written indemnification agreement with theinjured plaintiff's employer, as required under the contract of insurance as a condition ofcoverage. Under these circumstances, the defendant was entitled to summary judgmentdismissing the complaint. Schmidt, J.P., Goldstein, Skelos and Fisher, JJ., concur.