Opinion
8805 Index 652611/16
03-26-2019
BREEZE NATIONAL, INC., Plaintiff–Respondent, v. CENTURY SURETY COMPANY, Defendant–Appellant, ACT Abatement Corporation, Defendant.
Hurwitz & Fine, P.C., Buffalo (Jennifer A. Ehman of counsel), for appellant.
Hurwitz & Fine, P.C., Buffalo (Jennifer A. Ehman of counsel), for appellant.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (John F. Watkins of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Gesmer, Singh, Moulton, JJ.
The language found in Century's additional insured endorsement, in which Century agreed to afford plaintiff Breeze National, Inc. (Breeze) coverage as an additional insured only with respect to liability "caused, in whole or in part, by" its named insured ACT Abatement Corporation's (ACT) acts or omissions, applies to injury proximately caused by the named insured ( Burlington Ins. Co. v. NYC Tr. Auth., 29 N.Y.3d 313, 317, 57 N.Y.S.3d 85, 79 N.E.3d 477 [2017] ). Century's argument that ACT has never been adjudicated as negligent, and had no control over the means and methods of Wilk's work is misplaced, as the phrase "caused, in whole or in part, by" does not "compel the conclusion that the endorsement incorporates a negligence requirement, but simply means more than "but for" causation ( id. at 324, 57 N.Y.S.3d 85, 79 N.E.3d 477 ). The act of window removal, combined with the failure to guard the windows, was sufficient to establish proximate causation. Thus, Century must defend Breeze in the underlying action.
Because the record evidence indicates issues of fact as to whether Breeze was solely responsible, or partially responsible for the accident (see Indian Harbor Ins. Co. v. Alma Tower, LLC, 165 A.D.3d 549, 87 N.Y.S.3d 9 [1st Dept. 2018] ), the issue of indemnification
cannot be determined at this time (see Vargas v. City of New York, 158 A.D.3d 523, 525, 71 N.Y.S.3d 415 [1st Dept. 2018] ).