| Burlington Ins. Co. v Utica First Ins. Co. |
| 2010 NY Slip Op 01906 [71 AD3d 712] |
| March 9, 2010 |
| Appellate Division, Second Department |
| Burlington Insurance Company et al.,Respondents, v Utica First Insurance Company, Appellant. |
—[*1] Wade Clark Mulcahy, New York, N.Y. (Robert J. Cosgrove and Menachem Mendel Simonof counsel), for respondents.
In an action for a judgment declaring, inter alia, that the defendant is obligated to defend andindemnify the plaintiff Manlyn Development Corp. in an underlying action entitled WahCheong Chow v Manlyn Development Corp., pending in the Supreme Court, New YorkCounty, under index No. 106846/06, the defendant appeals, as limited by its notice of appeal andbrief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), enteredNovember 17, 2008, as denied that branch of its motion which was for summary judgmentdeclaring that it is not obligated to defend or indemnify the plaintiff Manlyn Development Corp.in the underlying action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the defendant's motion which was for summary judgment declaring that it is notobligated to defend or indemnify the plaintiff Manlyn Development Corp. in the underlyingaction is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entryof a judgment declaring that the defendant is not obligated to defend or indemnify the plaintiffManlyn Development Corp. in the underlying action.
The plaintiff Manlyn Development Corp. (hereinafter Manlyn) contracted to perform workas construction manager on a renovation project at a property located in Manhattan. Manlynsubcontracted certain work at the site to New York Interiors, Ltd. (hereinafter New YorkInteriors), as memorialized in a purchase order. The purchase order required New York Interiorsto obtain insurance in specified minimum amounts, and to name Manlyn as an additional insuredon the certificate of insurance. Although the purchase order is dated June 26, 2003, it was notsigned and "authorized" by Manlyn until July 9, 2003, and it was not signed by New YorkInteriors until July 23, 2003.
On June 27, 2003 Wah Cheong Chow, the plaintiff in the underlying action, allegedly wasinjured when he fell through a sidewalk cellar door at the subject site. He commenced theunderlying personal injury action against Manlyn and New York Interiors. The plaintiffs hereincommenced the instant action when the defendant Utica First Insurance Company, New York[*2]Interiors's insurer, refused to defend and indemnify Manlynin the underlying action on the ground that Manlyn was not an additional insured pursuant to theterms of the policy's additional insured endorsement. The "blanket additional insured"endorsement provided that an "insured" included any person or organization the insured wasrequired to name as an additional insured on the policy "under a written contract or writtenagreement." The endorsement further provided that the written contract or agreement must be,inter alia, "[c]urrently in effect or becoming effective during the terms of this policy; and. . . [e]xecuted prior to the 'bodily injury' [or] 'personal injury.' " The defendantdenied coverage to Manlyn on the ground that the purchase order was not signed at the time ofthe underlying plaintiff's alleged injury and, therefore, had not been "executed" as of that time.
In the order appealed from, the Supreme Court, inter alia, denied that branch of thedefendant's motion which was for summary judgment declaring that it was not obligated todefend or indemnify Manlyn in the underlying action. We reverse the order insofar as appealedfrom.
"[I]t is well settled that 'when parties set down their agreement in a clear, completedocument, their writing should . . . be enforced according to its terms' " (South Rd. Assoc., LLC v InternationalBus. Machs. Corp., 4 NY3d 272, 277 [2005], quoting Vermont Teddy Bear Co. v 538 MadisonRealty Co., 1 NY3d 470, 475 [2004]; see W.W.W. Assoc. v Giancontieri, 77NY2d 157, 162 [1990]). The agreement "should be read as a whole to ensure that undueemphasis is not placed upon particular words and phrases" (Bailey v Fish & Neave, 8 NY3d 523, 528 [2007]; see Matter ofWestmoreland Coal Co. v Entech, Inc., 100 NY2d 352, 358 [2003]). Extrinsic evidence maynot be considered unless it is determined as a matter of law that the agreement is ambiguous(see South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d at 278;Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).
Here, the term "executed" in the additional insured endorsement does not render the policyambiguous. "[T]hat the term 'executed' can be interpreted in two ways does not render thecontract uncertain or ambiguous" (Rodless Props., L.P. v Westchester Fire Ins. Co., 40 AD3d 253,254 [2007]). Rather, the defendant demonstrated that the contract was not "executed" at the timeof the alleged accident on June 27, 2003, since it was both unsigned and had not been fullyperformed at that time (id.; seeNicotra Group, LLC v American Safety Indem. Co., 48 AD3d 253, 253-254 [2008]).Moreover, there is no support for the plaintiffs' contention that the condition in the additionalinsured endorsement that the contract be "executed" prior to the bodily injury or personal injurycould be satisfied by partial performance. Accordingly, that branch of the defendant's motionwhich was for summary judgment declaring that it was not required to defend or indemnifyManlyn in the underlying action should have been granted.
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 the defendant is not obligated todefend and indemnify the plaintiff Manlyn Development Corp. in the underlying action (seeLanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962],cert denied 371 US 901 [1962]).
In light of our determination, the defendant's remaining contention has been renderedacademic. Santucci, J.P., Dickerson, Chambers and Sgroi, JJ., concur.