| Vikram Constr., Inc. v Everest Natl. Ins. Co. |
| 2016 NY Slip Op 03501 [139 AD3d 720] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| Vikram Construction, Inc.,Respondent, v Everest National Insurance Company et al., Defendants, andAtlantic Casualty Insurance Company, Appellant. |
Keidel, Weldon & Cunningham, LLP, White Plains, NY (Robert W. Lewis andDebra M. Krebs of counsel), for appellant.
King & King, LLP, Long Island City, NY (Peter M. Kutil and Katie L. Bireleyof counsel), for respondent.
In an action, inter alia, for a judgment declaring that the defendant Atlantic CasualtyInsurance Company is obligated to defend and indemnify Vikram Construction, Inc., inan underlying action entitled Perdomo v City of New York, commenced in theSupreme Court, Kings County, under index No. 27005/08, the defendant AtlanticCasualty Insurance Company appeals from an order of the Supreme Court, Kings County(Velasquez, J.), dated September 10, 2014, which denied, as premature, its motion forsummary judgment declaring that it is not obligated to defend and indemnify VikramConstruction, Inc., in the underlying action, with leave to renew upon the completion ofdiscovery.
Ordered that the order is reversed, on the law, with costs, the motion of the defendantAtlantic Casualty Insurance Company for summary judgment declaring that it is notobligated to defend and indemnify Vikram Construction, Inc., in the underlying action isgranted, and the matter is remitted to the Supreme Court, Kings County, for the entry of ajudgment declaring that the defendant Atlantic Casualty Insurance Company is not soobligated.
On November 13, 2007, Jesus Perdomo allegedly was injured during the course ofhis employment. At the time Perdomo sustained his injuries, he was employed by TejiConstruction, Inc. (hereinafter Teji). Teji was a subcontractor of the plaintiff, VikramConstruction, Inc. (hereinafter Vikram). Vikram alleges that during the relevant timeperiod, Teji was required to maintain a commercial general liability insurance policynaming Vikram as an additional insured. Vikram contended that Teji delivered to it a"certificate of liability insurance" stating that Teji had liability insurance with AtlanticCasualty Insurance Company (hereinafter Atlantic) and that Vikram was an additionalnamed insured. Vikram had in its possession a certificate of insurance which was datedDecember 13, 2007, and stated that the policy number was BINDER121307 with apolicy term running from December 13, 2007, until December 13, 2008. The certificatefurther stated that it was "issued as a matter of information only and confers no rightsupon the certificate holder. This certificate does not amend, extend or alter the coverageafforded by the policies below."
[*2] Perdomo commenced an action entitled Perdomo v City of New York in theSupreme Court, Kings County, under index No. 27005/08, seeking damages for hisalleged personal injuries against, among others, Vikram (hereinafter the underlyingaction). Vikram then commenced this action against Atlantic, among others, seeking ajudgment declaring that Atlantic is obligated to defend and indemnify it in the underlyingaction. Atlantic moved for summary judgment declaring that it is not so obligated. TheSupreme Court denied the motion as premature, with leave to renew after the completionof discovery.
Atlantic established its prima facie entitlement to judgment as a matter of lawdeclaring that it is not obligated to defend or indemnify Vikram in the underlying actionby submitting evidence demonstrating that it did not issue a policy of insurance to Teji.Atlantic submitted the affidavit of its vice-president of claims, who averred that Atlantichad no records indicating that a policy was ever issued by Atlantic to Teji and that itnever issued a policy that began with the letters "BINDER" (see Binyan Shel Chessed, Inc. vGoldberger Ins. Brokerage, Inc., 18 AD3d 590, 592 [2005]).
In opposition to Atlantic's prima facie showing, Vikram failed to raise a triable issueof fact. Even if the certificate of insurance produced by Vikram raised a triable issue offact as to whether Atlantic issued a policy to Teji, the effective date noted on the face ofthat certificate was after the date of the incident upon which the underlying action isbased. A party is not entitled to coverage if it is not named as an insured or additionalinsured on the face of the policy as of the date of the accident for which coverage issought (see Dichira vNawid, 126 AD3d 755, 756 [2015]; Frank v Continental Cas. Co., 123 AD3d 878, 881 [2014];York Restoration Corp. v Solty'sConstr., Inc., 79 AD3d 861, 862 [2010]).
Furthermore, Vikram's contention that the motion was premature is without merit. Aparty who seeks a finding that a summary judgment motion is premature is required toput forth some evidentiary basis to suggest that discovery might lead to relevant evidenceor that the facts essential to justify opposition to the motion were exclusively within theknowledge and control of the movant (see CPLR 3212 [f]; Binyan ShelChessed, Inc. v Goldberger Ins. Brokerage, Inc., 18 AD3d at 592). "[M]ere hope orspeculation that evidence sufficient to defeat a motion for summary judgment may beuncovered during the discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34AD3d 759, 760 [2006]; seeWilliams v Spencer-Hall, 113 AD3d 759, 760 [2014]). Here, Vikram failed tomeet its burden.
Accordingly, Atlantic's motion for summary judgment should have been granted, andwe remit the matter to the Supreme Court, Kings County, for the entry of a judgmentdeclaring that Atlantic is not obligated to defend and indemnify Vikram in the underlyingaction. Austin, J.P., Cohen, Miller and Duffy, JJ., concur.