| Salt Constr. Corp. v Farm Family Cas. Ins. Co. |
| 2014 NY Slip Op 05782 [120 AD3d 568] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1]
| Salt Construction Corp., Respondent, v FarmFamily Casualty Insurance Company, Appellant. |
Gorton & Gorton LLP, Mineola, N.Y. (John T. Gorton of counsel), forappellant.
Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville, N.Y. (LeonardPorcelli of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the defendant is obligated todefend and indemnify the plaintiff in an underlying action entitled Giacoia v SaltConstruction Corp., pending in the Supreme Court, Suffolk County, under index No.13902/08, the defendant appeals from an order of the Supreme Court, Suffolk County(Martin, J.), entered December 26, 2012, which granted the plaintiff's motion forsummary judgment declaring that the defendant is obligated to defend the plaintiff in theunderlying action.
Ordered that the order is affirmed, with costs, and the matter is remitted to theSupreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that thedefendant is obligated to defend the plaintiff in the underlying action entitled Giacoiav Salt Construction Corp., pending in the Supreme Court, Suffolk County, underindex No. 13902/08.
An insurer's duty to defend is broader than the duty to indemnify and arises wheneverthe allegations of the complaint against the insured, liberally construed, potentially fallwithin the scope of the risks undertaken by the insurer (see Barkan v New York SchoolsIns. Reciprocal, 65 AD3d 1061, 1063 [2009]). "The duty of an insurer to defendits insured arises whenever the allegations within the four corners of the underlyingcomplaint potentially give rise to a covered claim" (Physicians' Reciprocal Insurers vLoeb, 291 AD2d 541, 542 [2002]). If any of the claims against the insured arguablyarise from covered events, the insurer is required to defend the entire action (seeFitzpatrick v American Honda Motor Co., 78 NY2d 61 [1991]). Nonetheless, "aninsurer can be relieved of its duty to defend if it establishes as a matter of law that there isno possible factual or legal basis on which it might eventually be obligated to indemnifyits insured under any policy provision" (Allstate Ins. Co. v Zuk, 78 NY2d 41, 45[1991]).
The plaintiff established, prima facie, its entitlement to judgment as a matter of lawdeclaring that the defendant insurer has an obligation to defend the plaintiff in theunderlying action. The plaintiff demonstrated that the allegations of the complaint in theunderlying action potentially give rise to a claim covered by the policy (see e.g.Barkan v New York Schools Ins. Reciprocal, 65 AD3d at 1063-1064), and, inopposition, the defendant failed to raise a triable issue of fact (see [*2]generally Zuckerman v City of New York, 49 NY2d557, 563 [1980]).
The defendant's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summaryjudgment declaring that the defendant is obligated to defend it in the underlyingaction.
Since this is a declaratory judgment action, the matter must be remitted to theSupreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that thedefendant is obligated to defend the plaintiff in the underlying action (see Lanza vWagner, 11 NY2d 317, 334 [1962]). Skelos, J.P., Dickerson, Cohen and Duffy, JJ.,concur.