| 140 Broadway Prop. v Schindler El. Co. |
| 2010 NY Slip Op 03886 [73 AD3d 717] |
| May 4, 2010 |
| Appellate Division, Second Department |
| 140 Broadway Property et al., Respondents, v SchindlerElevator Company, Defendant, and Zurich American Insurance Company,Appellant. |
—[*1] Edward Garfinkel, Brooklyn, N.Y. (Fiedelman & McGaw, Jericho, N.Y. [Ross P. Masler], ofcounsel), for respondents.
In an action, inter alia, for a judgment declaring that the defendant Zurich AmericanInsurance Company is obligated to defend and indemnify the plaintiffs in an underlying actionentitled Ugur v 140 Broadway Property, LLC, pending in the Supreme Court, KingsCounty, under index No. 25238/05, as an additional insured under a certain policy of insuranceissued by the defendant Zurich American Insurance Company to the defendant SchindlerElevator Company, the defendant Zurich American Insurance Company appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated January9, 2009, as denied its cross motion for summary judgment declaring that it is not obligated todefend and indemnify the plaintiffs in the underlying action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the crossmotion of the defendant Zurich American Insurance Company for summary judgment declaringthat it is not obligated to defend and indemnify the plaintiffs in the underlying action is granted,and the matter remitted to the Supreme Court, Kings County, for the entry of an appropriatedeclaratory judgment.
The plaintiffs 140 Broadway Property and MSDW 140 Broadway Property, LLC(hereinafter together 140 Broadway), and their insurance company American Home AssuranceCompany, commenced this action for a judgment declaring that the defendant Zurich AmericanInsurance Company (hereinafter Zurich) is obligated to defend and indemnify them as anadditional insured under a general liability insurance policy issued by Zurich to the defendantSchindler Elevator Company (hereinafter Schindler) in an underlying personal injury actionbrought against 140 Broadway. The general liability insurance policy issued by Zurich toSchindler contained an additional insured endorsement which provided coverage to any entitySchindler had agreed by written contract to insure. According to the plaintiffs, their contract withSchindler required Schindler to obtain insurance coverage naming them as an additional insured.After the completion of discovery, the plaintiffs moved and Zurich cross-moved for summaryjudgment. By order dated January 9, 2009, the Supreme Court denied the motion and the crossmotion.[*2]
Zurich established its prima facie entitlement tojudgment as a matter of law by demonstrating that the plaintiffs do not qualify for additionalinsured status under the Zurich policy issued to Schindler, where the written contract betweenSchindler and 140 Broadway did not require Schindler to name 140 Broadway as an additionalinsured on its general liability coverage, as required by the Zurich policy. It is well settled thatwhether a third party is an additional insured under a policy is determined "from the intention ofthe parties to the policy, as determined from the four corners of the policy itself" (I.S.A. InN.J. v Effective Sec. Sys., 138 AD2d 681, 682 [1988]). In the instant matter, the blanketadditional insured endorsement in the Zurich general liability policy extends coverage to anyentity "for whom the named insured [Schindler] has specifically agreed by written contract toprocure bodily injury, property damage and personal injury liability insurance." Although thewritten contract between 140 Broadway and Schindler, the primary insured, requires Schindler topurchase several forms of insurance coverage, it does not expressly state that Schindler isrequired to name 140 Broadway as an additional insured on its general liability coverage.Consequently, the plain language of the written contract cannot be read to require Zurich todefend and indemnify 140 Broadway as an additional insured under the general liability policyissued to Schindler (see Trapani v 10 Arial Way Assoc., 301 AD2d 644, 647 [2003]; see also School Constr. Consultants, Inc. vARA Plumbing & Heating Corp., 63 AD3d 1029, 1030 [2009]; Mangano vAmerican Stock Exch., 234 AD2d 198, 199 [1996]; Public Adm'r of Bronx County vEquitable Life Assur. Socy. of U.S., 198 AD2d 105, 106 [1993]; Bishop v Port Auth. ofN.Y. & N.J., 170 AD2d 565, 567 [1991]).
In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Contrary to their contentions, the language of the Zurichpolicy is not ambiguous. In this regard, the question of whether an insurance policy is ambiguousis a matter of law to be determined by the court (see Breed v Insurance Co. of N. Am.,46 NY2d 351, 355 [1978]; see also Mount Vernon Fire Ins. Co. v Creative Hous., 88NY2d 347, 352 [1996]). Accordingly, the Supreme Court should have granted Zurich's crossmotion for summary judgment.
Since this is a declaratory judgment action, we remit the matter to the Supreme Court, KingsCounty, for the entry of a judgment declaring that Zurich is not obligated to defend andindemnify the plaintiffs in the underlying action (see Lanza v Wagner, 11 NY2d 317,324 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901[1962]). Fisher, J.P., Leventhal, Belen and Sgroi, JJ., concur.