| Jenel Mgt. Corp. v Pacific Ins. Co. |
| 2008 NY Slip Op 07192 [55 AD3d 313] |
| October 2, 2008 |
| Appellate Division, First Department |
| Jenel Management Corp. et al.,Respondents-Appellants, v Pacific Insurance Company,Appellant-Respondent. |
—[*1] Max W. Gershweir, New York, for respondents-appellants.
Orders, Supreme Court, New York County (Jane S. Solomon, J.), entered February 15, 2007and January 24, 2008, which, inter alia, declared that, in connection with an underlying action forpersonal injuries, plaintiff insurer and defendant are coprimary insurers of plaintiff insurer'scoplaintiffs herein, and denied certain items of damages claimed by plaintiff insurer,unanimously modified, on the law, to award plaintiff insurer $7,059.25 in attorneys' fees itincurred in prosecuting third-party claims against defendant's insured in the underlying action,and otherwise affirmed, without costs.
At issue is whether the stairwell area where the underlying accident occurred is covered bythe additional insured clause in the policy procured by the underlying plaintiff's employer fromdefendant herein, which clause extends coverage to plaintiff insurer's coplaintiffs herein, theemployer's landlord and the managing agent of the building. Coverage exists because theunderlying claim arose out of the "maintenance or use" of the leased premises, within themeaning of the additional insured clause, where the accident occurred in the course of an activitynecessarily incidental to the operation of the space leased by the employer, and in a part of thepremises that was necessarily used for access in and out of the leased space (see ZKZ Assoc.v CNA Ins. Co., 89 NY2d 990 [1997]; New York Convention Ctr. Operating Corp. vCerullo World Evangelism, 269 AD2d 275, 276 [2000]). We note that this result isconsistent with the lease, which required the employer to procure insurance against any liabilities"on or about the demised premises or any appurtenances thereto." The concededly excess policiesthat defendant would have the court review raise no priority-of-coverage issues (see Bovis Lend Lease LMB, Inc. v GreatAm. Ins. Co., 53 AD3d 140, 143-144 [2008]; cf. BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 716[2007]). The coplaintiffs' third-party claims against the employer were an essential component oftheir defense of the main underlying action, and, accordingly, plaintiff insurer is entitled toreimbursement of the $7,059.25 in attorneys' fees it incurred in prosecuting those claims (seePerchinsky v State of New York, 232 AD2d 34, 39 [1997], lv [*2]denied sub nom. Perchinsky v Granny G. Prods., 93 NY2d 812[1999]; Springstead v Ciba-GeigyCorp., 27 AD3d 720 [2006]). Concur—Lippman, P.J., Gonzalez, Nardelli, Acostaand DeGrasse, JJ.