Opinion
2021-05921 Index 23037/17E 43372/18E
10-28-2021
Algie Francis, Plaintiff, v. 41-21 28th Street Acquisition LLC et al., Defendants. 41-21 28th Street Acquisition LLC et al., Third-Party Plaintiffs-Appellants, Appeal No. 14513 Case No. 2020-04568
Gartner + Bloom, P.C., New York (Arthur P. Xanthos of counsel), for appellants. Lester Schwab Katz & Dwyer, LLP, New York (Jonathan Glasser of counsel), for respondents.
Gartner + Bloom, P.C., New York (Arthur P. Xanthos of counsel), for appellants.
Lester Schwab Katz & Dwyer, LLP, New York (Jonathan Glasser of counsel), for respondents.
Before: Renwick, J.P., González, Kennedy, Scarpulla, Rodriguez, JJ.
Order, Supreme Court, Bronx County (Donald A. Miles, J.), entered on or about May 6, 2020, which granted third-party defendant Utica National Assurance Company's (Utica) motion for summary judgment declaring that it has no duty to defend and indemnify defendants in the main action, unanimously affirmed, with costs.
Third-party defendant Utica demonstrated, prima facie, that third-party plaintiffs did not qualify as additional insureds under the policy issued to plaintiff's employer third-party defendant M.R. Electric Service, LLC (MRE). The policy issued by Utica to MRE provided that an organization would be added as an additional insured on the policy when MRE and such organization have agreed in writing in a contract or agreement that such organization be added as an additional insured on Utica's policy (see e.g. All State Interior Demolition Inc. v Scottsdale Ins. Co., 168 A.D.3d 612, 613 [1st Dept 2019]). The affidavit from MRE's officer demonstrates that there was no organization with which MRE agreed in writing that it be added as an additional insured on the policy at the time of plaintiff's accident. Defendants third-party plaintiffs failed to raise a triable issue of fact, as they conceded that MRE's contract with defendant Mint Development Corp. (Mint) was no longer in force, Mint admitted that its work at the premises ceased more than a year before plaintiff's injury, and defendants 41-21 28th Street Acquisition LLC and 41-21 28th Street LLC submitted no evidence of a contract between them and MRE.
We have considered defendants' remaining arguments and find them unavailing.