| Majawalla v Utica First Ins. Co. |
| 2010 NY Slip Op 02520 [71 AD3d 958] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Fahim Majawalla, as Executor of Yusuf K. Majawalla, Deceased,et al., Appellants, v Utica First Insurance Company,Respondent. |
—[*1] Milber Markis Plousadis & Seiden, LLP, White Plains, N.Y. (Lorin A. Donnelly and DavidS. Taylor of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the defendant is obligated to defend andindemnify the plaintiffs in an underlying action entitled Mangerino v Mirani, pending inthe Supreme Court, Queens County, under index No. 3118/05, the plaintiffs appeal from an orderof the Supreme Court, Queens County (Satterfield, J.), dated November 19, 2008, which grantedthe defendant's motion for summary judgment declaring that the defendant is not so obligated.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment is denied.
The individual plaintiffs in this action conducted business as the plaintiff Yashi Associates.In that capacity, they owned the premises at 65-00 Myrtle Avenue in Glendale and leased it tononparty Glendale Convenience Store, Inc. (hereinafter Glendale Convenience). On or aboutJanuary 14, 2004, nonparty Janet Mangerino allegedly fell in the parking lot of the store at thataddress, sustaining injuries. While Mangerino originally asserted that she fell on the sidewalkadjacent to the store, at her deposition she unequivocally testified that she fell in the parking lot,not on the sidewalk.
On or about February 2, 2005, Mangerino commenced an action against the plaintiffGhanshyam Mirani and Glendale Convenience, seeking to recover damages for personal injuriesallegedly sustained as a result of her fall. On or about June 23, 2005, Mangerino commenced apersonal injury action against the plaintiffs Yusuf K. Majawalla, Shoaib F. Haveliwala, andYashi Associates based on the same occurrence. In an order dated August 15, 2006, uponstipulation of the parties, the Supreme Court, Queens County, consolidated the two actions intowhat is the underlying action here.
A provision of the lease between Yashi Associates, as lessor, and Glendale Convenience, aslessee, required the lessee to maintain an insurance policy in connection with the leasedpremises, and to name the lessor as an additional insured under the policy. However, the policyobtained by the lessee did not name Yashi Associates or the individual plaintiffs as additionalinsureds. When the plaintiffs demanded that the defendant defend and indemnify them in theunderlying action, the defendant disclaimed [*2]coverage.
The plaintiffs commenced this action, inter alia, for a judgment declaring that the defendantis obligated to defend and indemnify them in the underlying action. The defendant moved forsummary judgment declaring that it had no duty to defend the plaintiffs in the underlying action.The Supreme Court granted the defendant's motion. We reverse.
The defendant established, prima facie, that the plaintiffs were not entitled to coverage asadditional insureds under the subject policy as they were not named as insureds or additionalinsureds therein (see Home DepotU.S.A., Inc. v National Fire & Mar. Ins. Co., 55 AD3d 671, 673 [2008]; see also Tribeca Broadway Assoc. v MountVernon Fire Ins. Co., 5 AD3d 198, 200 [2004]). However, in opposition, the plaintiffsraised a triable issue of fact. In its commercial liability section, the policy provided that thedefendant would not pay for bodily injury or property damage liability assumed under a contract.However, this section further stated that this exclusion "does not apply to an incidental contract."The policy's definition of an "incidental contract" included, inter alia, leases of premises, but thepolicy did not expressly state that the defendant was obligated to provide coverage pursuant toterms of an "incidental contract" (compare Kassis v Ohio Cas. Ins. Co., 12 NY3d 595 [2009])."Where, as here, the language of a contract is ambiguous, its construction presents a question offact which may not be resolved by the court on a motion for summary judgment" (Pepco Constr. of N.Y., Inc. v CNA Ins.Co., 15 AD3d 464, 465 [2005]). The ambiguity here raised a triable issue of fact as towhether the defendant was obligated to defend and indemnify the plaintiffs by operation of thesubject insurance policy and the lease (cf. Travelers Ins. Co. v Utica Mut. Ins. Co., 27 AD3d 456 [2006];State Farm Fire & Cas. Ins. Co. vMeis, 23 AD3d 372 [2005]; Pepco Constr. of N.Y., Inc. v CNA Ins. Co., 15 AD3d 464 [2005]).A triable issue of fact also exists as to whether the defendant would be obligated to defend andindemnify the plaintiffs based on where the accident occurred and whether the locationconstituted the "demised premises," whether it constituted an area "in or about the demisedpremises or any part thereof" as referred to in the provision of the rider to the lease pertaining toinsurance, or whether it was not part of the demised premises and, thus, not subject to coverageby the defendant. Further, we note that a motion for summary judgment by GlendaleConvenience, the named insured, was granted by the Supreme Court, Queens County, in an orderdated April 20, 2007. If the defendant is found to be obligated to defend and indemnify theplaintiffs by operation of the insurance policy and lease, a triable issue of fact exists as towhether the defendant would be released from that obligation because Glendale Convenience hasbeen absolved of all liability in the underlying action. In this regard, the term "[a]dditionalinsured" is typically understood to mean " 'an entity enjoying the same protection as the namedinsured' " (Kassis v Ohio Cas. Ins. Co., 12 NY3d at 599-600, quoting Pecker IronWorks of N.Y. v Traveler's Ins. Co., 99 NY2d 391, 393 [2003] [internal quotation marksomitted]).
With regard to the validity of the lease, the defendant established its prima facie entitlementto judgment as a matter of law by demonstrating that the lease and rider were executed only bythe plaintiff Ghanshyam Mirani on behalf of the landlord, and not by the tenant. However, inopposition, the plaintiffs submitted what they alleged to be a recently discovered copy of thelease and rider executed by both parties, as well as an affidavit describing the alleged recentdiscovery of the fully executed lease and rider. Under the circumstances presented here, this wassufficient to raise a triable issue of fact as to whether the lease and rider were authentic and ineffect at the time of the alleged accident.
The Supreme Court incorrectly concluded that the defendant properly disclaimed coveragebased on a policy provision in which the defendant, expressly excluded from coverage, inter alia,"paved outdoor surfaces, including driveways, parking lots, roads and walks." This provisionappears in the "property coverages" section of the policy. No similar exclusion is found in the"commercial liability coverages" portion of the policy. Thus, the policy does not expresslyexclude from coverage commercial liability for incidents occurring in the parking lot.
The defendant's remaining contentions are without merit. Rivera, J.P., Dickerson, Chambersand Hall, JJ., concur.