| Yangtze Realty, LLC v Sirius Am. Ins. Co. |
| 2011 NY Slip Op 09117 [90 AD3d 744] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Yangtze Realty, LLC, et al., Appellants, v Sirius AmericaInsurance Company, Respondent. |
—[*1] White, Quinlan & Staley, LLP, Garden City, N.Y. (Arthur T. McQuillan of counsel), forrespondent.
In an action for a judgment declaring that the defendant insurer is obligated to defend andindemnify the plaintiffs in an underlying property damage action entitled Estate ofRamkissoon v Yangtze Realty, LLC, commenced in the Supreme Court, Kings County,under index No. 12136/05, the plaintiffs appeal from an order of the Supreme Court, QueensCounty (Satterfield, J.), dated August 17, 2010, which granted the defendant's motion forsummary judgment, in effect, declaring that it is not obligated to defend and indemnify theplaintiffs in the underlying action, and denied the plaintiffs' cross motion for summary judgmentdeclaring that the defendant is obligated to defend and indemnify them in the underlying action.
Ordered that the order is affirmed, with costs, and the matter is remitted to the SupremeCourt, Queens County, for the entry of a judgment declaring that the defendant is not obligated todefend and indemnify the plaintiffs in the underlying action.
An insurer's duty to defend " 'arises whenever the allegations in a complaint state a cause ofaction that gives rise to the reasonable possibility of recovery under the policy' " (Fieldston Prop. Owners Assn., Inc. vHermitage Ins. Co., Inc., 16 NY3d 257, 264 [2011], quoting Fitzpatrick v AmericanHonda Motor Co., 78 NY2d 61, 65 [1991]; see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 714[2007]). The duty to defend is not triggered, however, "when the only interpretation of theallegations against the insured is that the factual predicate for the claim falls wholly within apolicy exclusion" (Global Constr. Co.,LLC v Essex Ins. Co., 52 AD3d 655, 656 [2008]; see Richner Dev., LLC v Burlington Ins. Co., 81 AD3d 705, 706[2011]; Bruckner Realty, LLC v CountyOil Co., Inc., 40 AD3d 898, 900 [2007]; see also Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137[2006]; Howard & Norman Baker, Ltd.v American Safety Cas. Ins. Co., 75 AD3d 533, 534 [2010]). An exclusion fromcoverage "must be specific and clear in order to be enforced" (Seaboard Sur. Co. v GilletteCo., 64 NY2d 304, 311 [1984]), "and an ambiguity in an exclusionary clause must beconstrued most strongly against the insurer" (Guachichulca v Laszlo N. Tauber & Assoc., LLC, 37 AD3d 760,761 [2007]). Nevertheless, "the plain meaning of a policy's language may not be disregarded tofind an ambiguity where none exists" (Howard & Norman Baker, Ltd. v American SafetyCas. Ins. Co., 75 AD3d at 534; see Guachichulca v Laszlo N. Tauber & Assoc., LLC,37 AD3d at 761).
Here, the defendant established its prima facie entitlement to judgment as a matter of law.The plain meaning of the exclusionary clause invoked by the defendant bars coverage for, [*2]inter alia, property damage arising out of work performed on behalfof the insured by a subcontractor where no prior written agreement exists indemnifying andholding harmless the insured in the event of a loss (see Wilson v Sirius Am. Ins. Co., 44 AD3d 754 [2007]). Thedefendant submitted evidence showing that the property damage in the underlying action wascaused by the work of a subcontractor hired by the insured plaintiffs, and that the insuredplaintiffs' written agreement with this subcontractor did not contain the required indemnity andhold harmless language. Accordingly, the defendant established, prima facie, that it was notobligated to defend and indemnify the plaintiffs in the underlying action (see Global Constr.Co., LLC v Essex Ins. Co., 52 AD3d at 656). In opposition to the defendant's prima facieshowing, the plaintiffs failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment and, for the same reason, properly denied the plaintiffs' cross motion for summaryjudgment.
Since this is an action for a declaratory judgment, the matter must be remitted to the SupremeCourt, Queens County, for the entry of a judgment declaring that the defendant is not obligated todefend and indemnify the plaintiffs in the underlying action (see Lanza v Wagner, 11NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US901 [1962]). Skelos, J.P., Leventhal, Belen and Roman, JJ., concur.