Opinion
11666 Index 655241/17
06-18-2020
DYNATEC CONTRACTING, INC., et al., Plaintiffs–Respondents, v. The BURLINGTON INSURANCE COMPANY, Defendant–Appellant, Rock Scaffolding Corp., Defendant.
Adrian & Associates, New York (James M. Adrian of counsel), for appellant. Melito & Adolfsen P.C., New York (Ignatius John Melito of counsel), for respondents.
Adrian & Associates, New York (James M. Adrian of counsel), for appellant.
Melito & Adolfsen P.C., New York (Ignatius John Melito of counsel), for respondents.
Acosta, P.J., Richter, Mazzarelli, Webber, Gonza´lez, JJ.
Order, Supreme Court, New York County (Doris Ling–Cohan, J.), entered January 15, 2019, which denied the cross motion of defendant Burlington Insurance Company for summary judgment and granted plaintiffs' motion for summary judgment declaring that Burlington was obligated to defend plaintiffs in the underlying action, unanimously modified, on the law, to declare that Burlington is not obligated to defend or indemnify plaintiff 653 Tenth Avenue, LLC (653 Tenth) as an additional insured on its policy issued to nonparty Rock Scaffolding, and that Burlington is obligated to reimburse plaintiff Dynatec Contracting, Inc. (Dynatec) for defense costs incurred since its tender to Burlington, and otherwise affirmed, without costs.
653 Tenth was not an additional insured under the Burlington policy issued to Rock Scaffolding, given the absence of contractual privity between Rock Scaffolding and 653 Tenth. The Burlington policy included as an additional insured, "any person(s) or organization(s) with whom you [Rock Scaffolding] agreed, because of a written contract, written agreement or permit, to provide insurance such as is afforded under this Coverage Part." However, no such contract exists between 653 Tenth and Rock Scaffolding (see Turner Constr. Co. v. Endurance Am. Specialty Ins. Co., 161 A.D.3d 439, 440, 75 N.Y.S.3d 24 [1st Dept. 2018] ; Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Mar. Ins. Co., 143 A.D.3d 146, 38 N.Y.S.3d 1 [1st Dept. 2016] ), affd 31 N.Y.3d 131, 74 N.Y.S.3d 162, 97 N.E.3d 711 [2018] ).
Burlington's initial disclaimer stated that the underlying plaintiff's verified bill of particulars and C3 form had been reviewed. Since both of these documents identified the accident location as the 5th floor level, this ground for disclaiming coverage was "readily apparent based upon the documents delivered to the insurer" ( Ace Packing Co., Inc. v. Campbell Solberg Assoc., Inc., 41 A.D.3d 12, 13, 835 N.Y.S.2d 32 [1st Dept. 2007] ), and Burlington's failure to raise this issue with its initial disclaimer precluded it from later asserting it as a defense (see Roman Catholic Diocese of Brooklyn v. National Union Fire Ins. Co. of Pittsburgh, Pa., 21 N.Y.3d 139, 146–147, 969 N.Y.S.2d 808, 991 N.E.2d 666 [2013] ; see also Highrise Hoisting & Scaffolding, Inc. v. Liberty Ins. Underwriters, Inc., 116 A.D.3d 647, 984 N.Y.S.2d 366 [1st Dept. 2014] ). Burlington is therefore obligated to defend Dynatec and reimburse Dynatec for its defense costs in the underlying action since the date of tender.