| Home Depot U.S.A., Inc. v National Fire & Mar. Ins. Co. |
| 2008 NY Slip Op 07867 [55 AD3d 671] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Home Depot U.S.A., Inc., Respondent-Appellant, v NationalFire & Marine Insurance Company, Appellant-Respondent. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Joshua Zimring and Steven B. Prystowskyof counsel), for respondent-appellant.
In an action, inter alia, for a judgment declaring that the defendant National Fire & MarineInsurance Company is obligated to defend and indemnify the plaintiff, Home Depot U.S.A., Inc., in anunderlying action entitled Galicia v Home Depot U.S.A., Inc., pending in Supreme Court,Kings County, under index No. 3587/04, as an additional insured under a certain policy of insuranceissued by the defendant to Westward Contracting, Inc., and that the defendant is obligated to indemnifyWestward Contracting, Inc., in the third-party action related to the underlying action, the defendantappeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Schmidt, J.), dated September 5, 2007, as denied that branch of its cross motion which was, in effect,for summary judgment dismissing the first, second, and third causes of action on the ground that theplaintiff, in its capacity as assignee of Westward Contracting, Inc., lacks standing to assert them, or inthe alternative, for summary judgment in its favor on those causes of action declaring that it is notobligated to indemnify Westward Contracting, Inc., in the third-party action related to the underlyingaction, and the plaintiff cross-appeals, as limited by its brief, from so much of the same order as, ineffect, denied that branch of its motion which was to compel discovery pursuant to CPLR 3126 andgranted that branch of the defendant's cross motion which was, in effect, for summary judgment in itsfavor on the fourth, fifth, and sixth causes of action declaring that it was not an additional insured underthe subject policy of insurance.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs ordisbursements.[*2]
The injured worker in the underlying action, an employee of thesubcontractor Westward Contracting, Inc. (hereinafter Westward), allegedly was injured whileperforming work on a project in which the plaintiff, Home Depot U.S.A., Inc. (hereinafter HomeDepot), was the general contractor. The injured worker commenced the underlying action against,among others, Home Depot. In response, Home Depot commenced a third-party action againstWestward for indemnification and a defense. By contract, Westward had agreed to obtain insurancenaming Home Depot as an additional insured under a commercial general liability policy which itobtained from the defendant, National Fire & Marine Insurance Company (hereinafter National Fire).Home Depot obtained a default judgment against Westward in the third-party action. National Firedisclaimed coverage to Westward in the underlying action and disclaimed coverage to Home Depot,contending that Home Depot was not named as an additional insured under the policy. Thereafter,Home Depot and Westward entered into an assignment agreement under which Westward agreed toassign its claims against National Fire to Home Depot in consideration for Home Depot's agreement to"limit any levy or execution or any process of any kind, relating to the Default Judgment againstWestward . . . solely to any and all claims or causes of action of whatever nature or kindwhich Westward might have or possess against" National Fire.
Home Depot, individually and as assignee of Westward, commenced the instant action againstNational Fire, inter alia, for a judgment declaring that National Fire was required to indemnifyWestward in the underlying third-party action and that National Fire was obligated to defend andindemnify Home Depot in the underlying action because Home Depot was named as an additionalinsured under the policy. Following motion practice, the Supreme Court, inter alia, in effect, denied thatbranch of Home Depot's motion which was to compel discovery pursuant to CPLR 3126, granted thatbranch of National Fire's cross motion which was, in effect, for summary judgment in its favor on thefourth, fifth, and sixth causes of action declaring that Home Depot was not an additional insured underthe subject policy of insurance, and denied that branch of National Fire's cross motion which was, ineffect, for summary judgment dismissing the first, second, and third causes of actions on the ground thatHome Depot, in its capacity as Westward's assignee, lacks standing to assert them, or in the alternativefor summary judgment in its favor on those causes of action declaring that it is not obligated toindemnify Westward in the underlying third-party action. We affirm the order insofar as appealed andcross-appealed from.
National Fire established, prima facie, that Home Depot was not entitled to coverage as anadditional insured under the policy of insurance as it was not named as an additional insured in thepolicy. In opposition to National Fire's prima facie showing, Home Depot failed to raise a triable issueof fact. The certificate of insurance, relied upon by Home Depot and which expressly stated that "it isissued as a matter of information only and confers no rights upon the certificate holder," was insufficientto support Home Depot's contention that it was an additional insured under the policy (see Cendant Car Rental Group v Liberty Mut.Ins. Co., 48 AD3d 397, 398 [2008]; Metropolitan Heat & Power Co., Inc. v AIGClaims Servs., Inc., 47 AD3d 621, 623 [2008]; Trapani v 10 Arial Way Assoc., 301AD2d 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, 423,424 [1998]). Accordingly, the Supreme Court properly granted that branch of National Fire's crossmotion which was, in effect, for summary judgment in its favor on the fourth, fifth, and sixth causes ofaction declaring that Home Depot was not an additional insured under the policy.
The Supreme Court properly denied that branch of National Fire's cross motion which was, ineffect, for summary judgment dismissing the first, second, and third causes of action on the ground thatHome Depot, in its capacity as assignee of Westward, lacks standing to assert those [*3]causes of action pursuant to Insurance Law § 3420. Home Depot,as assignee of Westward, was permitted to commence the instant action seeking a determination ofcoverage issues as they applied to Westward. Under New York law, claims are typically transferable(see Quantum Corporate Funding, Ltd. vWestway Indus., Inc., 4 NY3d 211, 216 [2005]), and National Fire has failed to support itscontention that such an assignment was prohibited by Insurance Law § 3420 (seeGeneral Obligations Law § 13-101; Grand Crossing, L.P. v United States Underwriters Ins.Co., 2007 WL 4591989, 2007 US Dist LEXIS 94244 [SD NY 2007]).
Similarly, the Supreme Court properly rejected National Fire's contention that it was relieved fromits obligation to indemnify Westward in the underlying third-party action because of the assignmentagreement. Since "an insurer's obligation to indemnify extends only to those damages the insured islegally obligated to pay, it naturally follows that a release discharging an insured from all liability relievesthe insurer from the duty of indemnification because it effectively eliminates any factual or legal groundson which the duty to indemnify may be based" (Westchester Fire Ins. Co. v Utica First Ins. Co., 40 AD3d 978, 980[2007], quoting McDonough v Dryden Mut. Ins. Co., 276 AD2d 817, 818 [2000]).Nonetheless, the assignment agreement did not constitute a release of Westward's liability in theunderlying personal injury action (compare Westchester Fire Ins. Co. v Utica First Ins. Co., 40AD3d at 980, with Westervelt v Dryden Mut. Ins. Co., 252 AD2d 877 [1998]; Erdman vEagle Ins. Co., 239 AD2d 847, 849 [1997]). Since National Fire failed to meet its prima facieburden, the sufficiency of the opposing papers need not be considered (see generally Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the Supreme Courtproperly denied that branch of National Fire's cross motion which was, in effect, for summary judgmentin its favor on the first, second, and third causes of action declaring that it is not obligated to indemnifyWestward in the underlying third-party action.
Home Depot's remaining contentions are without merit. Rivera, J.P., Miller, Angiolillo andChambers, JJ., concur.