| Nicotra Group, LLC v American Safety Indem. Co. |
| 2008 NY Slip Op 01080 [48 AD3d 253] |
| February 7, 2008 |
| Appellate Division, First Department |
| Nicotra Group, LLC, Respondent, et al.,Plaintiff, v American Safety Indemnity Company et al., Respondents, and RussoPicciurro Maloy, LLC, Defendant and Third-Party Plaintiff-Appellant. Buckingham BadlerAssociates, Inc., Third-Party Defendant-Respondent, et al., Third-PartyDefendant. |
—[*1] Kudman Trachten Aloe LLP, New York City (Alisa Silverstein of counsel), for NicotraGroup, LLC, respondent. Rutherford & Christie, LLP, New York City (Veronica Gannon of counsel), for AmericanSafety Indemnity Company, respondent. Newman Fitch Altheim Myers, P.C., New York City (Howard B. Altman of counsel), forMarkel Insurance Company, respondent. Callan, Koster, Brady & Brennan, LLP, New York City (Michael P. Kandler of counsel), forHanover Insurance Company, respondent. Melito & Adolfsen P.C., New York City (Tania A. Gondiosa of counsel), forZurich-America Insurance Company, respondent. Fiedelman & McGaw, Jericho (Ross P. Masler of counsel), for Buckingham BadlerAssociates, [*2]Inc., respondent.
Order, Supreme Court, New York County (Rosalyn Richter, J.), entered October 3, 2006,which, to the extent appealed from, denied the cross motion of defendant/third-party plaintiffRusso Picciurro Maloy (RPM) for summary judgment, and granted the motion of third-partydefendant Buckingham Badler Associates, Inc. (BBA) and the cross motions of defendantsAmerican Safety Indemnity Company, Markel Insurance Company, Hanover InsuranceCompany, and American Guarantee & Liability Insurance Company, sued herein as ZurichAmerica Insurance Company, for summary judgment dismissing the complaint as against them,unanimously affirmed, without costs. Order, same court and Justice, entered May 18, 2007,which granted plaintiff Nicotra Group, LLC's motion for reargument and, upon reargument,granted Nicotra's motion for summary judgment on its claim against RPM, unanimouslyaffirmed, without costs.
Contrary to RPM's contention, Nicotra was not afforded "additional insured" status under theinsurance policies issued by Hanover and American Guarantee to the construction manager forthe Hilton Hotel project. No written contract was ever entered into whereby the constructionmanager agreed to insure Nicotra with respect to the former's work at the project. The onlydocument relating to the work to be performed by the construction manager was a letter proposal,which was never signed by Nicotra and therefore does not qualify as a "written contract" that was"executed" prior to the "bodily injury," within the meaning of the policies (see National Abatement Corp. v NationalUnion Fire Ins. Co. of Pittsburgh, Pa., 33 AD3d 570, 571 [2006]). Furthermore, theletter proposal did not require that Nicotra be named as an additional insured on the constructionmanager's policy. In the policies, an additional insured is defined as a person or organizationwhom the named insured agreed, pursuant to a written contract, to name as an additional insured.
Nor did the certificate of insurance confer additional insured status (see Moleon vKreisler Borg Florman Gen. Constr. Co., 304 AD2d 337, 339 [2003]).
The record demonstrates that RPM, Nicotra's broker, and not BBA, the wholesale brokerthrough which RPM placed coverage, was responsible for the failure to place the coverage. Uponthe lapse of a prior policy issued by Zurich to cover the construction of the hotel, RPM sought toadd the remainder of the hotel construction to a policy issued by American Safety in connectionwith the construction of an adjacent office building. American Safety agreed to add the hotelconstruction for an additional premium and issued a policy change endorsement to that effect.RPM, however, was unwilling to pay an additional premium and returned the endorsement toBBA "for flat cancellation," pursuant to which American Safety cancelled the endorsement. Inlight of the testimony of RPM witnesses that "flat cancellation" is a term of art in insurancemeaning cancellation of a policy or endorsement as of its effective date, BBA was carrying outRPM's orders. Furthermore, on this record, the testimony of RPM's commercial lines managerthat his contact at BBA assured him that his spoken request to remove the [*3]additional premium was "being processed" and that he would beadvised of its status does not raise an issue of fact.
We have considered and rejected RPM's remaining contentions. Concur—Mazzarelli,J.P., Saxe, Friedman, Catterson and Acosta, JJ.