| Cendant Car Rental Group v Liberty Mut. Ins. Co. |
| 2008 NY Slip Op 01094 [48 AD3d 397] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Cendant Car Rental Group et al., Respondents, v LibertyMutual Insurance Company et al., Appellants, et al., Defendant. |
—[*1] Carfora, Klar, Gallo, Vitucci, Pinter & Cogan LLP, New York, N.Y. (Yolanda L. Ayala andMatthew J. Vitucci of counsel), for respondents.
In an action for a judgment declaring that the defendant Liberty Mutual Insurance Companyis obligated to defend and indemnify the plaintiffs in an underlying action entitled Minguzzi vTrade Zone Truck Rental, pending in the Supreme Court, Queens County, under index No.13799/04, the defendants Liberty Mutual Insurance Company and Graebel Companies, Inc.,doing business as Graebel Movers, Inc., appeal from an order of the Supreme Court, WestchesterCounty (Donovan, J.), entered September 11, 2006, which granted the plaintiffs' motion forsummary judgment declaring that the defendant Graebel Companies, Inc., doing business asGraebel Movers, Inc., through its insurer, the defendant Liberty Mutual Insurance Company, isobligated to defend and indemnify them in the underlying action.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motion forsummary judgment is denied.
The defendant David Padilla, an employee of the plaintiff Graebel Companies, Inc., doingbusiness as Graebel Movers, Inc. (hereinafter Graebel), was driving a truck rented from theplaintiff Budget Rent A Car Systems, Inc. (hereinafter Budget), when it was involved in anaccident with another vehicle. A passenger in the other vehicle commenced a personal injuryaction against, among others, the [*2]plaintiff Trade Zone TruckRental (hereinafter Trade Zone), Budget's dispatching dealer. The plaintiff Cendant Car RentalGroup (hereinafter Cendant) is the parent company of both Budget and Trade Zone.
Cendant, Budget, and Trade Zone commenced this action for a judgment declaring that thedefendant Liberty Mutual Insurance Company (hereinafter Liberty Mutual), Graebel's insurer, isobligated to defend and indemnify them in the underlying action. The Supreme Court granted theplaintiffs' motion for summary judgment. We reverse.
The plaintiffs failed to establish their prima facie entitlement to summary judgment declaringthat Liberty Mutual is required to defend and indemnify them in the underlying personal injuryaction (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Although the plaintiffsclaimed that pursuant to the rental agreement, Liberty Mutual, as Graebel's insurer, was theprimary insurer above the statutorily-mandated coverage (see ELRAC, Inc. v Ward, 96NY2d 58 [2001]), in support of their motion, they failed to submit a signed copy of the rentalagreement or a copy of the policy of insurance issued by Liberty Mutual to Graebel (hereinafterthe Liberty Mutual policy) (see Zurich Am. Ins. Co. v Argonaut Ins. Co., 204 AD2d 314,315 [1994]). Moreover, the certificate of insurance proffered in support of their motion, whichexpressly stated that "it is issued as a matter of information only and confers no rights upon thecertificate holder," was insufficient to support their contention that they were additional insuredsunder the Liberty Mutual policy (see Trapani v 10 Arial Way Assoc., 301 AD2d 644, 647[2003]; Penske Truck Leasing Co. v Home Ins. Co., 251 AD2d 478, 479 [1998];American Ref-Fuel Co. of Hempstead v Resource Recycling, 248 AD2d 420, 423[1998]). Since the plaintiffs failed to meet their burden, the sufficiency of the opposing papersneed not be considered (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]). Consequently, the Supreme Court should have denied the plaintiffs' motion forsummary judgment.
In light of the foregoing, the appellants' remaining contention need not be reached. Skelos,J.P., Santucci, Lifson and Covello, JJ., concur.