| Christ the King Regional High School v Zurich Ins. Co. of N.Am. |
| 2012 NY Slip Op 00481 [91 AD3d 809] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Christ the King Regional High School et al.,Appellants, v Zurich Insurance Company of North America,Respondent. |
—[*1] Melito & Adolfsen P.C., New York, N.Y. (Ignatius John Melito and Kira Tsiring of counsel),for respondent.
In an action for a judgment declaring that the defendant is obligated to defend and indemnifythe plaintiffs in an underlying personal injury action entitled Levine v Christ the KingRegional High School, commenced in the Supreme Court, Kings County, under index No.26408/06, the plaintiffs appeal from an order of the Supreme Court, Queens County (McDonald,J.), dated May 3, 2010, which denied their motion for summary judgment on the complaint.
Ordered that the order is affirmed, with costs.
The plaintiffs entered into an agreement with All American Talent (hereinafter AllAmerican), whereby All American was to rent the auditorium and three classrooms in theplaintiff Christ the King Regional High School (hereinafter the school) for two days for a dancecompetition. The contract required All American to name the school as an additional insured on aliability insurance policy issued to it by the defendant (see Christ the King Regional HighSchool v Zurich Ins. Co. of N. Am., 91 AD3d 806 [2012] [decided herewith]).
Shirley Levine allegedly was injured when she fell on a sidewalk while walking from theparking lot behind the school to the front entrance in order to attend the dance competition.Levine commenced an action against the present plaintiffs, alleging that her fall was caused by asidewalk defect. The plaintiffs sought defense and indemnification in that action from thedefendant, under an additional insured endorsement of a general liability policy issued by thedefendant to All American. When the defendant denied that request, the plaintiffs commencedthis action for a judgment declaring that the defendant is obligated to defend and indemnify themin the underlying personal injury action. The plaintiffs moved for summary judgment on thecomplaint, and the Supreme Court denied the motion. We affirm, but on a ground different fromthat relied upon by the Supreme Court.
In support of their motion, the plaintiffs argued that coverage was available under Section II,2.e of the Commercial General Liability Coverage Form, under which, as relevant here, an"insured" is defined to include any organization to whom All American was obligated, by virtueof a written contract, to provide liability insurance, "but only with respect to liability arising outof [its] operations." The portion of this provision limiting coverage to liability "arising out of [All[*2]American's] operations" requires that there be "some causalrelationship between the injury and the risk for which coverage is provided" (Regal Constr. Corp. v National Union FireIns. Co. of Pittsburgh, PA, 15 NY3d 34, 38 [2010], quoting Maroney v New York Cent. Mut. Fire Ins.Co., 5 NY3d 467, 472 [2005]; see Worth Constr. Co., Inc. v Admiral Ins. Co., 10 NY3d 411, 415[2008]). The plaintiffs failed to demonstrate, prima facie, the existence of such a causalrelationship. All American's "operations" consisted of conducting a dance competition in theschool auditorium and three classrooms. Bodily injury occurring outside the leased premises, inan area which All American had no responsibility to maintain or repair, "was not a bargained-forrisk" (Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d at 473). Rather, AllAmerican's "operations" at the school merely furnished the occasion for the accident, much likein Worth Constr. Co., where the fact that the named-insured subcontractor installed astaircase on which the injured plaintiff fell, thus furnishing "the situs of the accident," did notdemonstrate that the accident, caused by the installation of fireproofing on the staircase byanother subcontractor, arose from the named-insured subcontractor's "operations" (WorthConstr. Co., Inc. v Admiral Ins. Co., 10 NY3d at 416; cf. Castillo v Amjack Leasing Corp., 84 AD3d 1298, 1298 [2011]["liability may not be imposed upon a party who merely furnishes the condition or occasion forthe occurrence of the event but is not one of its causes" (internal quotation marks omitted)]).
Since the plaintiffs failed to meet their initial burden, we need not consider the sufficiency ofthe papers submitted by the defendant in opposition (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]).
Accordingly, the Supreme Court properly denied the plaintiffs' motion for summaryjudgment on the complaint. Skelos, J.P., Hall, Lott and Cohen, JJ., concur.