| School Constr. Consultants, Inc. v ARA Plumbing & HeatingCorp. |
| 2009 NY Slip Op 05313 [63 AD3d 1029] |
| June 23, 2009 |
| Appellate Division, Second Department |
| School Construction Consultants, Inc., Plaintiff, v ARAPlumbing & Heating Corp. et al., Defendants and Third-Party Plaintiffs-Appellants, et al.,Defendants. Arch Speciality Insurance Company, Third-PartyDefendants-Respondents. |
—[*1] Fabiani Cohen & Hall, LLP, New York, N.Y. (Lisa A. Sokoloff of counsel), for third-partydefendants-respondents.
In an action, inter alia, for a judgment declaring that the defendants third-party plaintiffsARA Plumbing & Heating Corp. and QBE Insurance Corporation are obligated to defend andindemnify the plaintiff in an action entitled Uzzi v Sachem Cent. School Dist., pendingin the Supreme Court, Suffolk County, under index No. 04/26703, the defendants third-partyplaintiffs appeal from an order of the Supreme Court, Suffolk County (Costello, J.), dated May20, 2008, which granted the motion of the third-party defendants pursuant to CPLR 3211 (a) (1)to dismiss the third-party complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion which was to dismiss the fourth cause of action of the third-partycomplaint, and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed, without costs or disbursements.
Contrary to the contention of the defendants third-party plaintiffs ARA Plumbing & HeatingCorp. (hereinafter ARA) and QBE Insurance Corporation (hereinafter QBE), the Supreme Courtproperly granted those branches of the motion of the third-party defendants Arch SpecialtyInsurance Company (hereinafter Arch) and Federal Sprinkler Corp. (hereinafter Federal)pursuant to CPLR 3211 (a) (1) which were to dismiss the first, second, and third causes of actionof the third-party complaint based on documentary evidence. The documents submitted by Archand Federal in support of the motion, consisting of the subcontract between ARA and Federaland the liability insurance policy issued by Arch pursuant thereto, sustained the movants' burdenof conclusively establishing a defense to those causes of action (see generally Leon vMartinez, 84 NY2d 83, 88 [1994]; Fortis Fin. Servs. v Fimat Futures USA, 290AD2d 383 [2002]; Scadura v Robillard, 256 AD2d 567 [1998]), by demonstrating thatArch and Federal were neither contractually obligated to provide insurance coverage to theplaintiff nor in fact provided such coverage (see e.g. Sixty Sutton Corp. v Illinois Union Ins.Co., 34 AD3d 386, 388 [2006]; Tribeca Broadway Assoc. [*2]v Mount Vernon Fire Ins. Co., 5 AD3d 198, 200 [2004]). Inthis regard, the certificate of insurance listing the plaintiff as an additional insured wasinsufficient to alter the language of the policy itself, especially since the certificate recited that itwas for informational purposes only, that it conferred no rights upon the holder, and that it didnot amend, alter, or extend the coverage afforded by the policy (see Illinois Natl. Ins. Co. vAmerican Alternative Ins. Corp., 58 AD3d 537, 538 [2009]; Home Depot U.S.A., Inc. vNational Fire & Mar. Ins. Co., 55 AD3d 671, 673 [2008]; ALIB, Inc. v Atlantic Cas. Ins.Co., 52 AD3d 419 [2008]; Nicotra Group, LLC v American Safety Indem. Co., 48AD3d 253, 254 [2008]; Metropolitan Heat & Power Co., Inc. v AIG Claims Servs., Inc.,47 AD3d 621 [2008]; International Couriers Corp. v North Riv. Ins. Co., 44 AD3d568, 569 [2007]; Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 AD2d 337, 339[2003]).
However, the fourth cause of action of the third-party complaint does not concern theprocurement of appropriate liability coverage, but instead seeks contractual indemnification forARA based upon an independent "hold harmless" provision in its subcontract with Federal.Since the motion by Arch and Federal did not specifically address this cause of action, and thedocuments they submitted did not conclusively demonstrate that it should be dismissed, theSupreme Court erred in granting the motion to this extent. Skelos, J.P., Santucci, Balkin andLeventhal, JJ., concur.