Summary
stating that where "liability exists as a result of an accident 'arising out of' use of leased area," that if it is an area that people "would have to traverse in order to reach the leased space," there can be liability "even when the injured person was not entering or exiting the establishment at the time he or she was injured"
Summary of this case from Tech. Ins. Co. v. Phila. Indem. Ins. Co.Opinion
01-10-2017
DONATO REALTY, LLC, et al., Plaintiffs–Respondents, v. UTICA FIRST INSURANCE COMPANY, Defendant–Appellant.
Farber Brocks & Zane L.L.P., Garden City (Sherri N. Pavloff of counsel), for appellant. Carroll, McNulty & Kull LLC, New York (Max W. Gershweir of counsel), for respondents.
Farber Brocks & Zane L.L.P., Garden City (Sherri N. Pavloff of counsel), for appellant.
Carroll, McNulty & Kull LLC, New York (Max W. Gershweir of counsel), for respondents.
TOM, J.P., RICHTER, SAXE, GISCHE, GESMER, JJ.
Order, Supreme Court, New York County (Shlomo Hagler, J.), entered on or about July 15, 2016, which granted plaintiffs' motion for summary judgment declaring that defendant is obligated to defend and indemnify plaintiff Donato Realty, LLC in the underlying personal injury action, and denied defendant's cross motion for summary judgment declaring that it is not so obligated, unanimously affirmed, with costs.
The lease agreement between plaintiff Donato's managing agent and the tenant required the tenant to maintain insurance for itself and Donato against "any liability arising out of the ownership, use, occupancy or maintenance of the demised premises and all areas appurtenant thereto," which includes the sidewalk (see Tower Ins. Co. of N.Y. v. Leading Ins. Group Ins. Co., Ltd., 134 A.D.3d 510, 21 N.Y.S.3d 240 [1st Dept.2015] ).
Defendant argues that Donato is not covered for the underlying personal injury, pursuant to the additional insured endorsement in the tenant's policy, which excludes coverage for "any structural alteration" made on Donato's behalf. However, the testimonial evidence indicates an unrepaired structural defect, rather than a structural alteration (see Leading Ins. Group Ins. Co., Ltd. v. Greenwich Ins. Co., 44 Misc.3d 435, 444, 984 N.Y.S.2d 854 [Sup.Ct., Kings County 2014] ). Moreover, the underlying complaint does not allege that the trip and fall was the result of repairs that had been made on Donato's behalf.