| Essex Ins. Co. v Michael Cunningham Carpentry |
| 2010 NY Slip Op 04732 [74 AD3d 733] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Essex Insurance Company, Respondent, v MichaelCunningham Carpentry et al., Defendants, and Andreassen & Bulgin Construction, Inc.,Appellant. |
—[*1] Methfessel & Werbel, P.C., New York, N.Y. (Fredric Paul Gallin of counsel), forrespondent.
In an action for a judgment declaring that the plaintiff is not obligated to defend orindemnify the defendant Michael Cunningham Carpentry or the defendant Andreassen & BulginConstruction, Inc., in certain underlying personal injury actions brought by the defendantsMarcelo Espana and Carmita Alvarez, the defendant Andreassen & Bulgin Construction, Inc.,appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County(Kerins, J.), dated December 9, 2008, as granted that branch of the plaintiff's motion which wasfor summary judgment declaring that it was not obligated to defend or indemnify the defendantAndreassen & Bulgin Construction, Inc.
Ordered that the order is affirmed insofar as appealed from, with costs.
In support of its motion for summary judgment, the plaintiff submitted evidence establishingthat the defendant Andreassen & Bulgin Construction, Inc. (hereinafter Andreassen), was notnamed as an insured or additional insured party on the commercial general liability insurancepolicy (hereinafter the subject policy), the plaintiff issued to the defendant Michael CunninghamCarpentry (hereinafter Cunningham) and, thus, was not entitled to coverage thereunder (see American Cleaners, Inc. v AmericanIntl. Specialty Lines Ins. Co., 68 AD3d 792 [2009]; Sixty Sutton Corp. v Illinois Union Ins. Co., 34 AD3d 386,388-389 [2006]; Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 AD2d 337, 339[2003]). The plaintiff also established that the third-party claims brought by Andreassen againstCunningham were not within the scope of the subject policy, as the employee exclusionprovision in the subject policy "precluded coverage for the injuries allegedly sustained by thedefendant [Marcelo Espana]" (UticaFirst Ins. Co. v Santagata, 66 AD3d 876, 879 [2009]; see Sixty Sutton Corp. vIllinois Union Ins. Co., 34 AD3d at 388-389). Thus, the plaintiff was not obligated to defendCunningham against the claims (seeFortress Ins. Co. v Kollander, 41 AD3d 423 [2007]; cf. Town of Massena vHealthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 443 [2002]; Bovis v Crab Meadow Enters., Ltd.,67 AD3d 846, 848 [2009]; Labate vLiberty Mut. Fire Ins. Co., 19 AD3d 652, 653 [2005]). In opposition, Andreassen failedto raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 [*2]NY2d 320, 324 [1986]).
Andreassen's contention that the motion for summary judgment was premature is withoutmerit. It failed to offer any evidentiary basis to suggest that discovery may lead to relevantevidence. The hope and speculation that evidence sufficient to defeat the motion might beuncovered during discovery was an insufficient basis to deny the motion (see Peerless Ins. Co. v Micro Fibertek,Inc., 67 AD3d 978, 979 [2009]; Tedesco v Tedesco, 64 AD3d 583, 584 [2009]; Conte v Frelen Assoc., LLC, 51 AD3d620, 621 [2008]).
In light of our determination, we need not address Andreassen's remaining contention.Rivera, J.P., Florio, Angiolillo and Lott, JJ., concur.