Opinion
2012-09-27
The CITY OF NEW YORK, Plaintiff–Appellant, v. ENDURANCE AMERICAN INSURANCE COMPANY, Defendant–Respondent.
Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for appellant. Newman Myers Kreines Gross Harris, P.C., New York (Olivia M. Gross of counsel), for respondent.
Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for appellant. Newman Myers Kreines Gross Harris, P.C., New York (Olivia M. Gross of counsel), for respondent.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered July 18, 2011, which denied the City's motion for summary judgment declaring that Endurance American Insurance Company is obligated to defend it in the underlying personal injury action and to reimburse it for its incurred attorneys' fees and expenses, unanimously reversed, on the law, without costs, the motion granted, and it is so declared, and the matter is remanded for a determination of the attorneys' fees and expenses to be reimbursed.
The commercial general liability insurance policy obtained from Endurance by nonparty Daidone Electric, Inc., the City's traffic signal maintenance contractor, covers the City as an additional insured for liability arising out of ongoing operations performed for it by Daidone. The underlying complaint alleges that the plaintiff's injuries arose out of the negligence of both the City and Daidone in maintaining the “traffic and pedestrian control devices” at the intersection where the plaintiff was struck by a car. These allegations “give[ ] rise to the reasonable possibility of recovery*910under the policy” ( see Fitzpatrick v. American Honda Motor Co., 78 N.Y.2d 61, 65, 571 N.Y.S.2d 672, 575 N.E.2d 90 [1991];Ruder & Finn v. Seaboard Sur. Co., 52 N.Y.2d 663, 669–670, 439 N.Y.S.2d 858, 422 N.E.2d 518 [1981];Technicon Elecs. Corp. v. American Home Assur. Co., 74 N.Y.2d 66, 73, 542 N.E.2d 1048 [1989] ). In any event, additional facts that potentially bring the claim within the policy's coverage are provided by Daidone's contract with the City, the police accident report, and Daidone's repair records ( see Fitzpatrick, 78 N.Y.2d at 66, 571 N.Y.S.2d 672, 575 N.E.2d 90).
We reject Endurance's contention that the record evidence establishes that Daidone's operations at the subject intersection had been completed and thus were no longer ongoing at the time of the accident ( compare New York City Hous. Auth. v. Merchants Mut. Ins. Co., 44 A.D.3d 540, 844 N.Y.S.2d 223 [1st Dept. 2007] ).