Opinion
03-22-2016
EUROTECH CONSTRUCTION CORP., Plaintiff–Appellant, v. QBE INSURANCE CORP., Defendant–Respondent.
FG McCabe & Associates, PLLC, New York (Gerard McCabe of counsel), for appellant. Goldberg Segalla, New York (Alex J. Yastrow of counsel), for respondent.
FG McCabe & Associates, PLLC, New York (Gerard McCabe of counsel), for appellant.
Goldberg Segalla, New York (Alex J. Yastrow of counsel), for respondent.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered January 30, 2015, which granted defendant's motion to dismiss the complaint, unanimously modified, on the law, to declare that defendant has no duty to defend or indemnify plaintiff in the underlying action, and, as so modified, affirmed, without costs.
The claims asserted against plaintiff in the underlying action arise from damage to plaintiff's own work product, i.e., the installation of defective fire stops and the failure to install wooden sub-flooring. There are no allegations in any of the underlying pleadings that plaintiff caused damage aside from or beyond its own work. Damage to an insured's own work or product does not constitute "property damage" caused by an "occurrence" within the meaning of the policy (George A. Fuller Co. v. United States Fid. & Guar. Co., 200 A.D.2d 255, 259–260, 613 N.Y.S.2d 152 [1st Dept.1994], lv. denied 84 N.Y.2d 806, 621 N.Y.S.2d 515, 645 N.E.2d 1215 [1994] ; National Union Fire Ins. Co. of Pittsburgh, Pa. v Turner Constr. Co., 119 A.D.3d 103, 107, 986 N.Y.S.2d 74 [1st Dept.2014] ).
The underlying allegations also fall squarely within the "business risk" exclusions of the policy, most pertinently, exclusions 2(j)(5) and (6), which have been held to bar coverage for damage to property resulting from the contractor's work (see Fuller, 200 A.D.2d at 260, 613 N.Y.S.2d 152 ; Pavarini Constr. Co. v. Continental Ins. Co., 304 A.D.2d 501, 759 N.Y.S.2d 56 [1st Dept.2003] ).
While the motion court correctly determined the merits of the complaint in this declaratory judgment action, rather than dismissing the complaint, it should have made a declaration in defendant's favor (Maurizzio v. Lumbermens Mut. Cas. Co., 73 N.Y.2d 951, 954, 540 N.Y.S.2d 982, 538 N.E.2d 334 [1989] ).
We have considered plaintiff's remaining contentions and find them unavailing.
SWEENY, J.P., RENWICK, MOSKOWITZ, GISCHE, JJ., concur.