| ABM Mgmt. Corp. v Harleysville Worcester Ins. Co. |
| 2013 NY Slip Op 08393 [112 AD3d 763] |
| December 18, 2013 |
| Appellate Division, Second Department |
| ABM Mgmt. Corp., Appellant, v HarleysvilleWorcester Insurance Company, Respondent, et al.,Defendants. |
—[*1] Goldberg Segalla, LLP, Garden City, N.Y. (Joanna M. Roberto and Brendan T.Fitzpatrick of counsel), for respondent.
In an action for a judgment declaring that the defendant Harleysville WorcesterInsurance Company is obligated to defend and indemnify ABM Mgmt. Corp. in anunderlying action entitled Public Adm'r of Queens County, as Administrator of theEstate of Vicente Castro Hernandez v 65-41 Booth St., Owners, Inc., pending in theSupreme Court, Queens County, under index No.14881/09, the plaintiff appeals from anorder of the Supreme Court, Queens County (Grays, J.), entered April 13, 2012, whichgranted that defendant's motion for summary judgment declaring that it is not obligatedto defend and indemnify the plaintiff in the underlying action, and denied the plaintiff'scross motion for summary judgment declaring that defendant is so obligated.
Ordered that the order is affirmed, with costs, and the matter is remitted to theSupreme Court, Queens County, for the entry of a judgment declaring that the defendantHarleysville Worcester Insurance Company is not obligated to defend and indemnify theplaintiff in the underlying personal injury action.
On June 11, 2007, Vincent Castro Hernandez (hereinafter the decedent) was fatallyinjured when a major artery in his arm was severed by a shattered glass entrance door ofa building owned by 65-41 Booth Street Owners, Inc. (hereinafter the owner). FromSeptember 2002 through August 2006, the plaintiff, ABM Mgmt. Corp., acted asproperty manager for the owner. The defendant Harleysville Worcester InsuranceCompany (hereinafter the respondent) issued a liability policy to the owner, theprovisions of which were in effect from June 1, 2007, to June 1, 2008.
The decedent's estate commenced a personal injury action against, among others, theplaintiff. The plaintiff tendered its defense to the respondent based upon language in thepolicy which extended coverage to the owner's real estate manager. However, therespondent rejected that tender on the ground that the plaintiff was not the owner's realestate manager on the date of the decedent's injury or at any time during the effectivedates of the policy.
This declaratory judgment action was initially commenced by the plaintiff as athird-party action in the underlying personal injury action, and was later severed from thepersonal injury [*2]action. The plaintiff seeks a judgmentdeclaring that the respondent is obligated to defend and indemnify it in the personalinjury action. The Supreme Court granted the respondent's motion for summary judgmentdeclaring that it has no such obligation, and denied the plaintiff's cross motion forsummary judgment declaring that the respondent is so obligated.
In construing policy provisions defining the scope of coverage pursuant to a policyof insurance, courts "first look to the language of the policy" (Consolidated EdisonCo. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 221 [2002]), reading it "in light ofcommon speech and the reasonable expectations of a businessperson" (Belt PaintingCorp. v TIG Ins. Co., 100 NY2d 377, 383 [2003] [citation and internal quotationmarks omitted]; see BP A.C.Corp. v One Beacon Ins. Group, 8 NY3d 708, 716 [2007]) and in a manner that"leaves no provision without force and effect" (Consolidated Edison Co. of N.Y. vAllstate Ins. Co., 98 NY2d at 222 [citation and internal quotation marks omitted]; see Vassar Coll. v Diamond StateIns. Co., 84 AD3d 942, 945 [2011]; Richner Communications, Inc. v Tower Ins. Co. of N.Y., 72AD3d 670, 671 [2010]). "[U]nambiguous provisions of an insurance contract mustbe given their plain and ordinary meaning" (Richner Communications, Inc. v TowerIns. Co. of N.Y., 72 AD3d at 671 [internal quotation marks omitted]), for "the plainlanguage of the policy is determinative, [and a court] cannot rewrite the agreement bydisregarding that language" (Fieldston Prop. Owners Assn., Inc. v Hermitage Ins. Co., Inc.,16 NY3d 257, 264 [2011]; 131 Heartland Blvd. Corp. v C.J. Jon Corp., 82 AD3d1188, 1189 [2011]). The issue of whether policy language is ambiguous and theinterpretation of ambiguous provisions are questions of law for the court (see White v Continental Cas.Co., 9 NY3d 264, 267 [2007]; 140 Broadway Prop. v Schindler El. Co., 73 AD3d 717,719 [2010]). Thus, "the [m]ere assertion by one that contract language means somethingto him [or her], where it is otherwise clear, unequivocal and understandable when read inconnection with the whole contract, is not in and of itself enough to raise a triable issueof fact" (Nisari v Ramjohn,85 AD3d 987, 990 [2011] [citations and internal quotation marks omitted]; see Richner Dev., LLC vBurlington Ins. Co., 81 AD3d 705, 706 [2011]).
Here, the respondent established its prima facie entitlement to judgment as a matterof law. The respondent's policy provided coverage for, inter alia, " 'bodily injury' or'property damage': (a) That occurs during the policy period; and (b) That is caused by an'occurrence.' " In addition to the named insured (i.e., the owner), the policy providedcoverage to "[a]ny person (other than your employee), or any organization while actingas [the owner's] real estate manager."
Read together, and in light of "the reasonable expectations of a businessperson"(Belt Painting Corp. v TIG Ins. Co., 100 NY2d at 383), it is plain that theseprovisions of the respondent's insurance policy are intended to cover the person or entityacting as the owner's real estate manager during the policy's effective dates and for"occurrences" which occur within those dates. To extend this coverage to the owner'sprior real estate managers and to acts or omissions outside the policy's effective dateswould improperly rewrite the parties' agreement to include coverage which was neverintended (see Fieldston Prop. Owners Assn., Inc. v Hermitage Ins. Co., Inc., 16NY3d at 264; Morales v Allcity Ins. Co., 275 AD2d 736 [2000]).
In opposition to the respondent's motion, the plaintiff failed to raise a triable issue offact.
Accordingly, the Supreme Court properly granted the respondent's motion forsummary judgment and denied the plaintiff's cross motion for summary judgment.
Since this is a declaratory judgment action, the matter must be remitted to theSupreme Court, Queens County, for the entry of a judgment declaring that the respondentis not obligated to defend and indemnify the plaintiff in the underlying personal injuryaction (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed371 US 74 [1962], cert denied 371 US 901 [1962]). Rivera, J.P., Dillon,Chambers and Hinds-Radix, JJ., concur.