| Bovis v Crab Meadow Enters., Ltd. |
| 2009 NY Slip Op 08575 [67 AD3d 846] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Gianni Bovis et al., Respondents, v Crab MeadowEnterprises, Ltd., et al., Defendants and Third-Party Plaintiffs-Respondents, et al., Defendants.Picone Energy Systems et al., Third-Party Defendants-Appellants. |
—[*1] Brody, O'Connor & O'Connor, Northport, N.Y. (Scott A. Brody and Patricia A. O'Connor ofcounsel), for third-party defendant-appellant Sirius America Ins. Co. Sanders, Sanders, Block, Woycik, Vieener & Grossman, P.C., Mineola, N.Y. (Belinda R.Boone of counsel), for plaintiffs-respondents.
In an action to recover damages for personal injuries, etc., and a third-party action forindemnification and contribution from the third-party defendant Picone Energy Systems and fora judgment declaring that the third-party defendant Sirius America Ins. Co. is obligated to defendand indemnify the defendants third-party plaintiffs in the main action, (1) the third-partydefendant Sirius America Ins. Co. appeals from so much of an order of the Supreme Court,Suffolk County (Spinner, J.), dated January 18, 2008, as denied its motion for summaryjudgment declaring that it is not obligated to defend and indemnify the defendants third-partyplaintiffs Crab Meadow Enterprises, Ltd., D. Kummer Construction Co., and KummerConstruction Co. in the main action, and the third-party defendant Picone Energy Systemsseparately appeals, as limited by its brief, from so much of the same order as denied its crossmotion for summary judgment dismissing the third-party complaint insofar as asserted against it,and (2) the third-party defendant Sirius America Ins. Co. appeals from so much of an order of thesame court dated July 21, 2008, as, upon reargument, adhered to the original determinationdenying its motion for summary judgment, and the defendant Picone Energy Systems separatelyappeals, as limited by its brief, from so much of the same order as, upon reargument, adhered tothe original determination denying its cross motion for summary judgment.
Ordered that the appeals from the order dated January 18, 2008 are dismissed, without costsor disbursements, as that order was superseded by the order dated July 21, 2008, made uponreargument; and it is further,[*2]
Ordered that the order dated July 21, 2008 is affirmedinsofar as appealed from, without costs or disbursements.
On October 22, 2002 the plaintiff Gianni Bovis (hereinafter the injured plaintiff), anemployee of the third-party defendant Picone Energy Systems (hereinafter Picone), allegedlywas injured when he fell from a scaffold while working for Picone. Picone was a subcontractorof the defendants third-party plaintiffs Crab Meadow Enterprises Ltd., D. Kummer ConstructionCo., and Kummer Construction Co. (hereinafter collectively the Crab Meadow defendants). TheCrab Meadow defendants' insurer was the third-party defendant Sirius America Insurance Co.(hereinafter Sirius). The injured plaintiff and his wife, suing derivatively, commenced an actionagainst, among others, the Crab Meadow defendants, alleging common-law negligence andviolations of Labor Law §§ 200, 240 (1) and § 241 (6). The Crab Meadowdefendants commenced a third-party action seeking indemnification and contribution fromPicone, and a judgment declaring that Sirius was obligated to defend and indemnify them in themain action.
The Supreme Court properly denied Picone's cross motion for summary judgment dismissingthe third-party complaint insofar as asserted against it. "Workers' Compensation Law § 11bars a third-party action for contribution or indemnification against an employer when itsemployee is injured in a work-related accident unless the employee has sustained a 'grave injury'or the claim for contribution or indemnification is 'based upon a provision in a written contractentered into prior to the accident or occurrence by which the employer had expressly agreed tocontribution to or indemnification of the claimant or person asserting the cause of action for thetype of loss suffered' " (Fischer vWaldbaum's, Inc., 7 AD3d 756, 756 [2004], quoting Workers' Compensation Law§ 11; see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 585[1998]; Guijarro v V.R.H. Constr. Corp., 290 AD2d 485, 486 [2002]; Potter v M.A.Bongiovanni, Inc., 271 AD2d 918, 919 [2000]). Here, the third-party defendant Piconefailed to establish, prima facie, its entitlement to judgment as a matter of law. Specifically,Picone failed to establish that it did not enter into an indemnification agreement with the CrabMeadow defendants in 2002 prior to the injured plaintiff's accident.
Further, the court properly denied Sirius's motion for summary judgment declaring that it isnot obligated to defend and indemnify the Crab Meadow defendants in the main action. Aninsurer's obligation to defend is broader than its obligation to indemnify, and arises whenever theallegations in a complaint against the insured fall within the scope of the risk undertaken by theinsurer (see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 310 [1984]). "To be relievedof its duty to defend on the basis of a policy exclusion, the insurer bears the heavy burden ofdemonstrating that the allegations of the complaint cast the pleadings wholly within thatexclusion, that the exclusion is subject to no other reasonable interpretation, and that there is nopossible factual or legal basis upon which the insurer may eventually be held obligated toindemnify the insured under any policy provision" (Frontier Insulation Contrs. v MerchantsMut. Ins. Co., 91 NY2d 169, 175 [1997]; see Fortress Ins. Co. v Kollander, 41 AD3d 423, 424 [2007]).Here, Sirius, the insurer of the Crab Meadow defendants, failed to establish, prima facie, itsentitlement to judgment as a matter of law. Sirius failed to submit any evidence establishing thatthere was no possible basis upon which it may be obligated to indemnify the Crab Meadowdefendants since there was no evidence that Picone and the Crab Meadow defendants did notenter into an indemnification agreement in 2002. Accordingly, Picone's and Sirius's failure tomake a prima facie showing of entitlement to judgment as a matter of law required a denial oftheir respective motions regardless of the sufficiency of the opposing papers (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]) and, thus, upon reargument, theSupreme Court correctly adhered to its determinations denying their motions. Skelos, J.P.,Covello, Santucci and Balkin, JJ., concur.