| Insurance Corp. of N.Y. v Central Mut. Ins. Co. |
| 2008 NY Slip Op 00204 [47 AD3d 469] |
| January 15, 2008 |
| Appellate Division, First Department |
| The Insurance Corporation of New York et al.,Appellants, v Central Mutual Insurance Company et al.,Respondents. |
—[*1] Rivkin Radler LLP, Uniondale (Jason B. Gurdus of counsel), for respondents.
Order, Supreme Court, New York County (Carol Edmead, J.), entered June 28, 2006, whichgranted defendants' motion for summary judgment to the extent of dismissing the claims ofplaintiff Calleo, and denied plaintiffs' cross motion for summary judgment and to amend thecaption with respect to plaintiff Calleo, unanimously modified, on the law, without costs,Calleo's claims reinstated, the matter remanded for consideration of the cross motion to amendthe caption, and otherwise affirmed.
On January 23, 2004, a personal injury action was brought by an employee of plaintiff CalleoConstruction Corp. for injuries sustained during the course of his employment at a constructionsite owned by plaintiff Congregation Or Zarua. Calleo was the general contractor on the site.Defendant S & S Construction Group was one of Calleo's subcontractors on that site. Thepersonal injury action named the Congregation, Calleo and S & S as defendants.
On December 15, 2004, the Congregation, Calleo and their liability insurer, plaintiffInsurance Corporation of New York, commenced the instant action seeking a declaration thatdefendant Central Mutual Insurance, S & S's liability insurer, was obligated to defend andindemnify the Congregation and Calleo in connection with the personal injury action. Thecomplaint alleged that the contract between Calleo and S & S required Calleo to purchase acommercial general liability insurance policy, naming as additional insureds the owner, designconsultants and their respective partners, directors, officers, employees, agents andrepresentatives, and that it also required S & S to obtain insurance covering the Congregation andCalleo.
The insurance contract between S & S and Central contained an endorsement entitled"Additional Insured—Owners, Lessees or Contractors—Automatic Status whenRequired in Construction Agreement with You," which defined an insured as "any person ororganization for whom you are performing operations when you and such person or organizationhave agreed in writing in a contract or agreement that such person or organization be added as anadditional insured on your policy." S & S did obtain a certificate of liability insurance, datedJanuary 29, 2001 (three days after the incident that injured Calleo's employee), naming S & S asthe insured [*2]and Calleo as the certificate holder. The certificatecontained the following language: "This certificate is issued as a matter of information only andconfers no rights upon the certificate holder. This certificate does not amend, extend or alter thecoverage afforded by the policies below." It thereafter named the holder as an additional insuredon the policy.
Defendants moved for summary judgment dismissing the complaint and seeking declarationsthat S & S's insurance contract with Central did not obligate Central to defend or indemnifyCalleo or the Congregation, and that the subcontract did not obligate S & S to procure additionalinsurance coverage for either. They further argued that the certificate of insurance naming Calleoas a certificate holder did not confer coverage on either Calleo or the Congregation.
Plaintiffs opposed the motion and cross moved for summary judgment declaring either thatthe Congregation and Calleo were additional insureds on Central's policy or were entitled tocoverage pursuant to an indemnification clause in the subcontract between Calleo and S & S. Insupport of their motion, plaintiffs submitted the affidavit of Gino Calleo, president of CalleoDevelopment Corp., averring that it was always the intent of the subcontract between Calleo andS & S that the latter would obtain liability insurance naming both Calleo and the Congregation asadditional insureds.
The IAS court granted defendants' motion for summary judgment declaring that the insurancecontract between Central and S & S did not obligate Central to defend or indemnify Calleo in theunderlying personal injury action, and the contract entered into between Calleo and S & S did notobligate S & S to procure additional insurance for Calleo. It found that Calleo was obligated toname Zarua as an additional insured on its policy, but there was an issue of fact as to whether thesubcontract imposed the same obligation on S & S. However, the court found that thesubcontract, including the attachment setting forth S & S's insurance obligation to the owner,contained no written agreement by S & S to name Calleo as an additional insured on its policy.
A contract should be "read as a whole, and every part will be interpreted with reference to thewhole; and if possible it will be so interpreted as to give effect to its general purpose"(Empire Props. Corp. v Manufacturers Trust Co., 288 NY 242, 248 [1942], quoting whatis now treated in 11 Lord, Williston on Contracts § 32:5 [4th ed]).
Here the court determined there was an issue of fact as to whether the subcontract imposedan obligation on S & S to obtain insurance for the Congregation, and then went on to find noissue of fact with respect to S & S's obligation to obtain insurance for the contractor. Thesubcontract, however, contained at least one page that was taken in toto from the contractbetween the Congregation and Calleo with respect to the purchase of insurance coverage.Moreover, a plain reading of the contract provisions between Calleo and S & S concerninginsurance mirror, in some cases, those in the contract between Zarua and Calleo and thus raise anissue of fact as to the intent of the parties concerning which entities should be included asadditional insureds. On a defendant's motion for summary judgment, the evidence should beliberally construed in a light most favorable to the plaintiff (Ansonia Assoc. Ltd. Partnershipv Public Serv. Mut. Ins. Co., 257 AD2d 84, 89 [1999], lv denied 96 NY2d 715[2001]). Moreover, it is axiomatic that on a motion for summary judgment, issue-finding, ratherthan issue-determination, is the key to the procedure and the motion should not be granted wherethere is any doubt as the existence of a genuine factual issue (Millerton Agway Coop. vBriarcliff Farms, 17 NY2d 57 [1966]).
In this case, there is an issue of fact as to whether the contract between Calleo and S & S[*3]required S & S to name Calleo and the Congregation asadditional insureds and hence, defendants' motion for summary judgment should have beendenied in its entirety. Concur—Saxe, J.P., Marlow, Williams, Sweeny and Malone, JJ.