| Cataract Sports & Entertainment Group, LLC v Essex Ins.Co. |
| 2009 NY Slip Op 00925 [59 AD3d 1083] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Cataract Sports & Entertainment Group, LLC, et al., Plaintiffs, vEssex Insurance Company, Respondent, and Frank Strangio et al., Appellants, et al.,Defendant. |
—[*1] Hurwitz & Fine, P.C., Buffalo (Steven E. Peiper of counsel), fordefendant-respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Niagara County(Richard C. Kloch, Sr., A.J.), entered September 14, 2007 in a declaratory judgment action. Thejudgment, insofar as appealed from, dismissed the complaint, granted the motion of defendantEssex Insurance Company for summary judgment declaring that it is not obligated to defend orindemnify plaintiffs in the underlying personal injury action, and denied the cross motion ofdefendants Frank Strangio and Merrie Carole Strangio for summary judgment.
It is hereby ordered that the judgment insofar as appealed from is unanimously reversed onthe law without costs, the complaint is reinstated, the motion is denied, the declaration isvacated, the cross motion is granted, and judgment is granted as follows:
It is adjudged and declared that defendant Essex Insurance Company is obligated to defendand indemnify plaintiffs in the underlying personal injury action.
Memorandum: Plaintiffs commenced this action seeking, inter alia, judgment declaring thatdefendant Essex Insurance Company (Essex) has a duty to defend and indemnify them in theunderlying personal injury action brought by defendants Frank Strangio and his wife, MerrieCarole Strangio. In the underlying action, the Strangios seek damages for injuries sustained byFrank Strangio during a flag football game when he allegedly stepped into a rut in the artificialturf on premises owned and operated by plaintiffs. Supreme Court erred in granting the motionof Essex seeking summary judgment declaring that it is not obligated to defend or indemnifyplaintiffs in the underlying action and in denying the Strangios' cross motion seeking adeclaration to the contrary. We note at the outset that the Strangios ordinarily would lackstanding to seek such relief against Essex based on their failure to satisfy the requirements ofInsurance Law § 3420 by obtaining a judgment against Essex, the tortfeasors' insurer,[*2]in the underlying action (see 3405 Putnam Realty Corp. v Insurance Corp. of N.Y., 36 AD3d565 [2007], lv denied 8 NY3d 813 [2007]). Here, however, plaintiffs named them asparty defendants, thereby allowing them to contest the issue of coverage in this action (seeid.).
On the merits, we conclude that the commercial general liability policy issued by Essex toplaintiffs provides coverage for the accident. "Where an insurance policy is clear andunambiguous, it must be enforced as written" (Woods v General Acc. Ins., 292 AD2d802, 802 [2002]). The policy in effect at the time of the accident, as modified by EndorsementM/E 217 (4/99), unambiguously provides liability coverage for bodily injury arising out of the"ownership, maintenance or use of the premises" or arising out of the "project shown inthe Schedule," i.e., the golf driving range. Because the policy identifies the insured premises inthe disjunctive, each must be separately considered and either would support coverage (seegenerally Propis v Fireman's Fund Ins. Co., 112 AD2d 734, 737-738 [1985], affd 66NY2d 828 [1985]; Coutu v Exchange Ins. Co., 174 AD2d 241, 243 [1992]). Because theinjury in the underlying action allegedly arose out of the "ownership, maintenance or use of thepremises," the Strangios are entitled to judgment declaring that Essex is obligated to defend andindemnify plaintiffs in the underlying action. Present—Martoche, J.P., Smith, Centra,Green and Pine, JJ.