| Monadnock Constr., Inc. v DiFama Concrete, Inc. |
| 2010 NY Slip Op 01461 [70 AD3d 906] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Monadnock Construction, Inc., et al.,Appellants, v DiFama Concrete, Inc., et al., Defendants, and Hudson InsuranceCompany, Respondent. |
—[*1] White, Fleischner & Fino, LLP, White Plains, N.Y. (Dharman P. Niles of counsel), forrespondent.
In an action for a judgment, inter alia, declaring that the defendant Hudson InsuranceCompany is obligated to defend and indemnify the plaintiffs Monadnock Construction, Inc.,Hudson Chelsea Associates, LLC, Kimmel Family 23rd Street, LLC, and Mandelbaum 23rdStreet, LLC, in an underlying personal injury action entitled Cronin v Hudson ChelseaAssoc., LLC, commenced in the Supreme Court, New York County, under index No,126112/02, the plaintiffs appeal, as limited by their brief, from so much of an order of theSupreme Court, Nassau County (Brandveen, J.), dated December 5, 2008, as, upon renewal andreargument, modified a prior order dated March 3, 2008, by adding a provision thereto limitingthe plaintiffs' right to recover the costs and attorneys' fees they incurred in defending theunderlying action to those costs and fees incurred prior to October 29, 2007.
Ordered that the order dated December 5, 2008, is affirmed, with costs, and the matter isremitted to the Supreme Court, Nassau County, for the entry of a judgment declaring thatHudson Insurance Company is obligated to indemnify Monadnock Construction, Inc., ChelseaAssociates, LLC, Kimmel Family 23rd Street, LLC, and Mandelbaum 23rd Street, LLC, forcosts and attorneys' fees they incurred in defending the underlying action only through October29, 2007.
The defendant Hudson Insurance Company (hereinafter Hudson) issued a "commercialliability policy" to Precise Brick, Inc. (hereinafter Precise), one of various contractors present ata construction site at 520 West 23rd Street in New York. James Cronin, who was employed byanother contractor, allegedly was injured while working at the site. Cronin commenced apersonal injury action (hereinafter the underlying action) against Precise, as well as againstMonadnock Construction, Inc., Hudson Chelsea Associates, LLC, Kimmel Family 23rd Street,LLC, and Mandelbaum 23rd Street, LLC (hereinafter collectively the appellants).
In an order dated June 26, 2007, the Supreme Court, New York County, noting the lack ofopposition from Cronin, granted "the respective motions by the defendants" in the underlying[*2]action, including the appellants' motion for summaryjudgment dismissing the complaint insofar as asserted against them, and directed that "thecomplaint [be] dismissed in its entirety." In an order dated July 26, 2007, that court, sua sponte,vacated the order dated June 26, 2007. Ultimately, however, based on what it described asCronin's attorney's express consent to "letting the defendant [Precise] out of the case," that court,in an order dated October 29, 2007, granted Precise's motion to vacate the order dated July 26,2007, and, at least as to Precise, reinstated its order dated June 26, 2007.
Hudson defended Precise in the underlying action, and also defended the appellants as"additional insureds" under the Hudson policy.
In an order dated December 17, 2007, the Supreme Court, New York County, also dismissed"all claims" asserted by Cronin in the underlying action against the appellants. It is unclearwhether any of Cronin's claims remain viable against any other defendants in the underlyingaction.
The appellants commenced the instant action against Hudson, among others, seeking ajudgment, inter alia, declaring that Hudson was not only obligated to defend them in connectionwith every aspect of the underlying action, but is obligated to indemnify them for all costs andattorneys' fees they incurred in defending the underlying action, including those costs and feesincurred after October 29, 2007. In an order dated March 3, 2008, the Supreme Court, NassauCounty, granted the appellants' motion in the instant action for summary judgment declaring thatHudson was obligated to reimburse them "for all defense costs and attorney's fees expended indefending the underlying personal injury action." Upon granting Hudson's motion for leave torenew and reargue, the Supreme Court, in an order dated December 5, 2008, inter alia, modifiedthe order dated March 3, 2008, by adding a provision thereto limiting the appellants' entitlementto recover, from Hudson, costs and attorneys' fees they incurred in defending the underlyingaction to those costs incurred prior to October 29, 2007. We affirm the order dated December 5,2008, insofar as appealed from.
When an underlying action is dismissed as against a "named insured," the insurer that issueda policy of insurance to the "named insured" is relieved of its duty to defend any "additionalinsured" in that action (see Worth Constr. Co., Inc. v Admiral Ins. Co., 10 NY3d 411[2008]; City of Niagara Falls v Merchants Ins. Group, 34 AD3d 1263 [2006]). In theirpapers before the Supreme Court, and in their main briefs in this Court, the appellants take noissue with Hudson's contention that the order in the underlying action dated October 29, 2007,dismissed all the claims against Precise, the named insured, including all cross claims assertedagainst Precise. The Supreme Court accepted Hudson's contention in this regard and, thus,properly held that Hudson's duty to the appellants terminated as of October 29, 2007. Theappellants' contrary contention that all of the claims against Precise were not, in fact, dismissedas of October 29, 2007, is improperly raised for the first time in their reply brief (see Borbeckv Hercules Constr. Corp., 48 AD3d 498 [2008]).
Since this is a declaratory judgment action, the matter must be remitted to the SupremeCourt, Nassau County, for the entry of a judgment declaring that Hudson is obligated toindemnify the appellants for costs and attorneys' fees they incurred in defending the underlyingaction only through October 29, 2007 (see Lanza v Wagner, 11 NY2d 317, 324,appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Dillon,J.P., Florio, Leventhal and Roman, JJ., concur.