Opinion
155444/16
12-06-2019
GREATER NEW YORK MUTUAL INSURANCE COMPANY, Plaintiff, v. STATE NATIONAL INSURANCE COMPANY, INC., Defendant.
Plaintiff: Greater New York Mutual Insurance Company, 200 Madison Avenue, New York, NY 10016, By: Jonathan A. Messier, Esq. Defendant: Farber Brocks & Zane, LLP, 400 Garden City Plaza, Garden City, NY 11530, By: Sherri N. Pavloff, Esq.
Plaintiff: Greater New York Mutual Insurance Company, 200 Madison Avenue, New York, NY 10016, By: Jonathan A. Messier, Esq.
Defendant: Farber Brocks & Zane, LLP, 400 Garden City Plaza, Garden City, NY 11530, By: Sherri N. Pavloff, Esq.
Robert R. Reed, J.
In this insurance coverage dispute, plaintiff Greater New York Mutual Insurance Company (GNY) moves pursuant to CPLR 3212 (e) and CPLR 2991 for partial summary judgment: (1) declaring that defendant, State National Insurance Company, Inc. (SNIC), is obligated to defend 299 Owners Corp. (299) and Blue Woods Management Group, Inc. (Blue) in an action captioned Chimborazo v. Blue Woods Mgt. Group, Inc. , Index No. 715135/14 (Sup Ct, Queens County) (hereinafter, the underlying action); and (2) declaring that SNIC's coverage for 299 and Blue is primary to GNY's coverage. GNY also seeks reimbursement of costs and expenses incurred by 299, and paid by GNY, in connection with its defense of the underlying action, with interest calculated at the statutory rate, and costs and expenses incurred in this action.
CPLR 2991 does not exist. The court will decide this motion pursuant to CPLR 3001, for declaratory judgment.
BACKGROUND
The Underlying Action
In the underlying action, Luis R. Chimborazo (Chimborazo) alleges that, on April 28, 2014, he was injured when he was struck in the head by a falling plank, while performing work at the premises located at 299 Riverside Drive, New York, New York (underlying action supplemental summons and amended verified complaint, New York St Cts Electronic Filing System [NYSCEF] Doc No. 61). Chimborazo sued 299 and Blue, alleging, among other things, that 299 and Blue were the owners of the premises, and that they were negligent and violated Labor Law §§ 240, 241 (6) and 200 (id. ).
Thereafter, 299 and Blue filed a third-party action against Xinos Construction Corp. (Xinos), the general contractor, seeking contractual and/or common-law indemnification and contribution (underlying action third-party summons and complaint, NYSCEF Doc No. 62). Xinos then impleaded New City Construction Corp. (New City), Chimborazo's employer, as a second third-party defendant, likewise seeking contractual and/or common-law indemnification and contribution (underlying action second third-party summons and verified complaint, NYSCEF Doc No. 16). Lastly, 299 and Blue impleaded New City, as a third third-party defendant, asking for the same relief (underlying action third third-party summons and complaint, NYSCEF Doc No. 35).
Xinos moved, pursuant to CPLR 3212, for summary judgment on its claim for contractual indemnification against New City, and thereafter, pursuant to CPLR 2221, for leave to renew (Justice Butler's November 14, 2018 order, NYSCEF Doc No. 70). The court granted Xinos's motion for leave to renew its motion for summary judgment on November 14, 2018, and, upon granting renewal, granted its motion for summary judgment (id. ). Justice Denis J. Butler stated:
"At the time of the accident, plaintiff was underneath a scaffold that had been erected by his employer, New City, when a wooden plank fell from the scaffold and struck him. Two New City employees were working on the scaffold when the plank fell. The scaffold was under the direction, control, and supervision of New City. At no time before plaintiff's accident did anyone from Xinos direct, supervise, or control the means or method of New City's work at the site.
...
Chimborazo was the foreman for New City at the site. Guillermo Chimborazo testified that, as foreman, he was in charge of supervising the work and employees. Guillermo Chimborazo additionally testified that Xinos' project manager never provided any direction or instruction to New City employees and was not present on the date of the accident. The court thus finds that the accident arose out of New City's work" (id. at 4). Justice Butler further reasoned that "[t]he facts surrounding plaintiff's accident coupled with the language of the indemnification clause in the contract indicate that Xinos is entitled to conditional contractual indemnification against New City" (id. ).
The Trade Contracts
On September 20, 2013, 299 and Blue retained Xinos to perform repairs on three steel columns at 299 Riverside Drive, New York, New York (AIA Document A101-1997 [hereinafter, A101-1997], Standard Form of Agreement between Owner and Contractor, NYSCEF Doc No. 58). The contract incorporated AIA Document A201-2007, which required Xinos to name the owner as an additional insured on its commercial liability policies (AIA Document A201-2007 [hereinafter, A201-2007], General Conditions of the Contract for Construction § 11.1.4, NYSCEF Doc No. 59), stating:
"§ 11.1.4 The Contractor shall cause the commercial liability coverage required by the Contract Documents to include (1) the Owner, the Architect and the Architect's consultants as additional insureds for claims caused in whole or in part by the Contractor's negligent acts or omissions during the Contractor's operations; and (2) the Owner as an additional insured for claims caused in whole or in part by the Contractor's negligent acts or omissions during the Contractor's completed operations" (id. ). The owner's name, legal status and address are listed as "299 Owners Corp., c/o Blue Woods Management Group, Inc., 42 River Street, 2nd Floor, Sleepy Hollow, New York, 10591" (NYSCEF Doc Nos. 58, 59).
On March 21, 2014, Xinos retained New City as a subcontractor for the steel column repairs (subcontract, NYSCEF Doc No. 71). The contract required New City to name Xinos as an additional insured on its commercial general liability (CGL) policy (id. at § 13.1.1).
The Insurance Policies
a. SNIC's Policy
SNIC issued a CGL policy (policy no. CTM 1300341) to Xinos, which was effective from February 24, 2014 to February 24, 2015 (SNIC policy, NYSCEF Doc No. 65 at 2).
The policy contains an insuring agreement that provides, in relevant part, that:
"a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this Insurance applies. We will have the right and duty to defend the insured against any ‘suit’ seeking those damages" (id. at 5).
Endorsement No. 22 to the policy, entitled "Additional Insured-Owners, Lessees or Contractors," provides as follows:
SCHEDULE
"Name of Person or Organization:
"Blanket Basis Where Required by Written Contract
"WHO IS AN INSURED (Section II) is amended to include as an additional insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work" for that additional insured by or for you and only where required by written contract" (SNIC Endorsement No. 22, NYSCEF Doc No. 56).
Endorsement No. 21 to the policy, entitled "Primary and Non-Contributory," indicates that:
"Where required by written contract, it is agreed that this policy shall be primary to any insurance carried by an additional insured, and any insurance carried by such additional insured shall not be called upon to contribute to any claim covered under this policy, provided that the claim arises directly from work performed by the Named Insured or others working directly on behalf of the Named Insured and provided further that the ‘occurrence’ that gives rise to such claim happened subsequent to the execution of the written contract.
It is warranted that whenever the Named Insured has agreed by written contract to be primary to any insurance carried by an additional insured, the Named Insured will require by written contract that the Commercial General Liability policy of any contractor or subcontractor of the Named Insured will be primary to any insurance carried by the Named Insured and that the Named Insured's Commercial General Liability policy shall not be called upon to contribute to any claim covered under any policy of such contractor or subcontractor" (NYSCEF Doc No. 65 at 50).
b. GNY's Policy
GNY issued CGL policy, No. 1131M87136, with a policy period from March 20, 2014 through March 20, 2015, to 299 and Blue (GNY policy, NYSCEF Doc No. 64 at 1). The GNY policy contains an insuring agreement that provides, as is relevant here, as follows:
"We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. We will have the right and duty to defend the insured against any ‘suit’ seeking those damages" (id. at 114).
Form CGU 00 05 02/06 provides, as is relevant here, as follows:
"When this insurance is excess, we will have no duty under COVERAGES A or B to defend the insured against any ‘suit’ if any other insurer has a duty to defend the insured against that ‘suit’ . If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers" (id. at 140 [emphasis added] ).
The GNY policy contains an "Other Insurance" provision that provides, in relevant part, as follows:
"This insurance is excess over:
* * *
"(b) Any other primary insurance available to you covering liability for damages arising out of the premises or operations, or the products and completed operations, for which you have been added as an additional insured by attachment of an endorsement" (id. at 124).
GNY's Tenders to SNIC
By letter dated August 20, 2014, GNY notified SNIC of the accident and requested defense and indemnification in the underlying action on behalf of 299 and Blue (summons and complaint, NYSCEF Doc No. 1, ¶ 10). By letter dated August 29, 2014, National Claim Services, SNIC's third-party administrator, disclaimed coverage for 299 and Blue for the underlying action, on the basis that 299 and Blue did not qualify as additional insureds under the policy (id. , ¶ 11). By letter dated December 16, 2015, GNY again requested defense and indemnification in the underlying action on behalf of 299 and Blue (id. , ¶ 12). SNIC again disclaimed coverage by letter dated January 13, 2016 for the same reason (id. , ¶ 13).
PROCEDURAL HISTORY
In this action, GNY seeks a declaration that SNIC is required to defend 299 and Blue in the underlying action on a primary, noncontributory basis. GNY also seeks reimbursement for the costs incurred in defending 299 and Blue in the underlying action and costs incurred in this action.
ARGUMENTS
GNY now moves for partial summary judgment declaring that SNIC is obligated to defend 299 and Blue in the underlying action. GNY argues that Xinos agreed, in its subcontract, to name 299 and Blue as additional insureds on its CGL coverage and that the underlying action falls within the scope of coverage afforded to an additional insured. Moreover, GNY contends that the SNIC policy applies on a primary basis, while the GNY policy applies on an excess basis.
In opposition to GNY's motion, SNIC argues that GNY lacks standing to sue SNIC pursuant to Insurance Law § 3420. SNIC does not dispute that Xinos agreed to name 299 as an additional insured in its written contract; rather, it argues that the contract only refers to 299, not Blue. Moreover, SNIC contends that the trade contract between Xinos and 299 and Blue is not properly authenticated. In addition, SNIC argues that the additional-insured endorsement is not triggered by a third-party complaint, and that the Tudor Insurance Company's (Tudor) policy must first be exhausted before its own policy. In support of its contention, SNIC points to the underlying action's complaint, where Chimborazo only alleges that 299 and Blue are responsible for his injuries, not Xinos. SNIC maintains that a "third-party pleading has never served as a basis for determination that additional insured coverage is owed; nor even that a duty to defend is triggered" (memorandum of law in opposition, NYSCEF Doc No. 69 at 6). SNIC relies on Justice Butler's determination that Xinos did not direct, control or supervise Chimborazo's work, to show that Chimborazo's injuries do not arise out of Xinos's work, and therefore, its obligation to defend 299 and Blue has not been triggered (id. at 7). SNIC also points to Justice Butlers' decision to support its contention that Tudor's policy is primary, as (1) Tudor was ordered to provide additional insured coverage and defend and indemnify Xinos, 299 and Blue; (2) Tudor's policy specifies that its coverage is primary; and (3) SNIC's policy provides that its policy will not contribute with any additional insured coverage provided by a subcontractor of Xinos.
Tudor insures New City. SNIC impleaded Tudor as a third-party defendant on August 2, 2016 but subsequently discontinued the action on July 26, 2018 due to an action already pending in Sup Ct., Queens County, Index No. 702352/2018 (stipulation of discontinuance, NYSCEF Doc No. 48).
In reply, GNY argues that both 299 and Blue are properly named as additional insureds in the Schedule of Form CG 20 10 11 85 (Blanket Basis Where Required by Written Contract). According to GNY, Xinos had discretion to name whomever it wanted as an additional insured and that Xinos's intent was to name the owners of the property, both 299 and Blue. Further, relying on Zurich-American Ins. Cos. v. Atlantic Mut. Ins. Cos. (139 AD2d 379, 387-388 [1st Dept 1988] affd 74 NY2d 621 [1989] ), GNY claims that it has proper standing to initiate this suit as it seeks relief rooted in equitable contribution. In response to SNIC's contention that Tudor's policy must first be exhausted before SNIC's duty to defend is triggered, GNY points to the fact that Tudor is no longer a party to the instant action and that SNIC has misinterpreted Justice Butler's decision in the underlying matter as it pertains to Tudor's obligation to provide additional insured coverage and defend and indemnify Xinos, 299 and Blue. Lastly, GNY contends that Xinos's trade contract is appropriately submitted by its attorney affirmation. According to GNY, SNIC has failed to raise any triable issues of fact that preclude partial summary judgment in GNY's favor.
DISCUSSION
It is well-established that to obtain summary judgment under CPLR 3212 (b), the movant must put forth "proof in admissible form" to "establish [a] cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in the [movant's] favor" ( Friends of Animals v. Associated Fur Mfrs. , 46 NY2d 1065, 1067 [1979], quoting CPLR 3212 [b] ). If the movant "fails to meet this initial burden, summary judgment must be denied ‘regardless of the sufficiency of the opposing papers’ " ( Vega v. Restani Constr. Corp. , 18 NY3d 499, 503 [2012] [emphasis removed] ). Once the movant meets this initial burden, then the burden shifts to the opposition to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues (De Lourdes Torres v. Jones , 26 NY3d 742, 763 [2016] ; Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ).
I. Whether GNY has Standing to Sue SNIC
SNIC argues that GNY does not have standing to commence this action pursuant to Insurance Law § 3420. SNIC argues that according to the provision, "a third party's declaratory judgment action for coverage may be sustained only if there is an underlying judgment against the insured, notice of that judgment to the insurer, and the failure of the insurer to satisfy that judgment within thirty days" (NYSCEF Doc No. 74 at 3). In support of its contention, SNIC cites to Lang v. Hanover Ins. Co. (3 NY3d 350, 351 [2004] ). However, the facts and issues presented before the Lang Court are inapposite to this matter. The Court of Appeals in Lang analyzed "whether, and under what circumstances, a stranger to the policy —an injured party who has sued a tortfeasor —can bring a direct action against the tortfeasor's insurance company for a determination of coverage issues" ( id. at 353 [emphasis added] ). This would be the case had Chimborazo commenced suit against SNIC. Contrary to SNIC's interpretation of the case, the Court in Lang stated that, "an insurance company that disclaims in a situation where coverage may be arguable is well advised to seek a declaratory judgment concerning the duty to defend or indemnify the purported insured" ( id. at 356 [emphasis added]; see also Zurich-American Ins. Cos. , 139 AD2d at 387 ["If several insurers bind themselves to the same risk and one insurer pays the whole loss, the one so paying has a right of action against his coinsurers for a ratable proportion of the amount paid by him because he has paid a debt which is equally and currently due by the other insurers"] ).
Accordingly, GNY has standing to commence suit against SNIC.
II. Whether the Trade Contract Between 299 Blue and Xinos is Properly Authenticated
SNIC's argument that the trade contract is improperly authenticated, even though it is submitted through an attorney's affirmation, is similarly unconvincing. GNY attorney's affirmation properly admits documentary evidence in support of its motion (see Zuckerman , 49 NY2d at 563 ["The affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may, of course, serve as the vehicle for the submission of acceptable attachments which do provide ‘evidentiary proof in admissible form’ "]; see DeLeon v. Port Auth. of NY & N.J. , 306 AD2d 146, 146 [1st Dept 2003] [establishing that "merely attaching the subject leases to the attorney's affirmation was sufficient to admit the leases" on a motion for summary judgment] ).
III. Whether SNIC Must Defend 299 in the Underlying Action
It is well established that the party claiming coverage bears the burden of proving entitlement ( National Abatement Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa. , 33 AD3d 570, 570 [1st Dept 2006] ; Tribeca Broadway Assoc. v. Mount Vernon Fire Ins. Co. , 5 AD3d 198, 200 [1st Dept 2004] ). An additional insured is "an entity enjoying the same protection as the named insured" ( Pecker Iron Works of NY v. Traveler's Ins. Co. , 99 NY2d 391, 393 [2003] [internal quotation marks and citation omitted] ).
"An insurer's obligation to furnish its insured with a defense is heavy indeed, and, of course, broader than its duty to pay. So far as concerns the obligation of the insured to defend the question is not whether the injured party can maintain a cause of action against the insured but whether he can state facts which bring the injury within the coverage. If he states such facts the policy requires the insurer to defend irrespective of the insured's ultimate liability" ( International Paper Co. v. Continental Cas. Co. , 35 NY2d 322, 326—327 [1974] [internal quotation marks and citation omitted] ).
The duty remains if "the pleadings allege a covered occurrence, even though facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered" ( Fitzpatrick v. American Honda Motor Co. , 78 NY2d 61, 63 [1991] ). "[I]f any of the claims against [an] insured arguably arise from covered events, the insurer is required to defend the entire action" ( Sport Rock Intl., Inc. v. American Cas. Co. of Reading, Pa. , 65 AD3d 12, 17 [1st Dept 2009] [internal quotation marks and citations omitted] ).
"An insurer may obtain a declaration absolving it of its duty to defend only when a comparison of the policy and the underlying complaint on its face shows that, as a matter of law, ‘there is no possible factual or legal basis on which the insurer might eventually be held to be obligated to indemnify the insured under any provision of the insurance policy’ " ( Greenwich Ins. Co. v. City of New York , 122 AD3d 470, 471 [1st Dept 2014], quoting Servidone Constr. Corp. v. Security Ins. Co. of Hartford , 64 NY2d 419, 424 [1985] ).
GNY has established, pursuant to A201-2007 § 11.1.4, that Xinos agreed, in a written contract, to name 299 as an additional insured on its commercial liability policy (NYSCEF Doc No. 59 § 11.1.4). The agreement was executed on September 20, 2013, prior to the date of the accident and was in effect at the time of Chimborazo's accident on April 28, 2014. Therefore, 299 is entitled to additional insured status under the SNIC policy.
The phrase "arising out of" has been defined to mean "originating from, incident to or having connection with" ( Regal Constr. Corp. v. National Union Fire Ins. Co. of Pittsburgh, PA , 15 NY3d 34, 38 [2010] [internal quotation marks and citation omitted] ). "It requires only that there be some causal relationship between the injury and the risk for which coverage is provided" (id. [internal quotation marks and citation omitted] ). "The focus of an ‘arising out of’ clause is not on the precise cause of the accident but on the general nature of the operation in the course of which the injury was sustained" ( Hunter Roberts Const. Group., LLC v. Arch Ins. Co. , 75 AD3d 404, 408 [1st Dept 2010] ). "The language in the additional insured endorsement granting coverage does not require a negligence trigger" ( W & W Glass Sys., Inc. v. Admiral Ins. Co. , 91 AD3d 530, 531 [1st Dept 2012] ). Here, the SNIC policy defines "Your Work" as work performed "by you or for you" (NYSCEF Doc No. 65 at endorsement No.22). Furthermore, it is undisputed that Chimborazo's employer was contracted by Xinos to perform steel column repair on Xinos's behalf and that, as a result of that work, an injury occurred for which Xinos may be held statutorily or vicariously liable (NYSCEF Doc No. 71). Therefore, the "arising out of" requirement has been satisfied.
SNIC argues that 299 is not entitled to additional insured coverage because the initial underlying complaint does not allege that Xinos was negligent. The facts in this case are like that of Indian Harbor Ins. Co. v. Alma Tower, LLC (165 AD3d 549, 549 [1st Dept 2018] ), where the court examined a third-party pleading against a subcontractor to establish that the insurer had knowledge of facts establishing a reasonable possibility of coverage and defense for the additional insureds. Here, shortly after the underlying action was commenced, 299 and Blue filed a third-party action against Xinos, alleging negligence and seeking indemnification and contribution. Also, by letter dated August 20, 2014, GNY placed SNIC on notice of the accident and requested defense and indemnification on behalf of 299 and Blue (summons and complaint, NYSCEF Doc No. 1, ¶ 10). Thus, SNIC was on notice that the underlying injury may have arisen out of Xinos's work, and, therefore, would have a duty to defend 299 in the underlying action (id. ; see Fitzpatrick , 78 NY2d at 66 ["insurer must provide a defense if it has knowledge of facts which potentially bring the claim within the policy's indemnity coverage"] ).
SNIC also argues that the additional insured endorsement only confers coverage for liability arising out of Xinos's work, and that Justice Butler's decision stating Xinos did not direct, control or supervise Chimborazo's work shows that the "arising out of" requirement has not been met and therefore its duty to defend has not been triggered. SNIC has interpreted Justice Butler's decision, granting summary judgment in favor of Xinos on its claim for contractual indemnification against Chimborazo's employer, as one that frees it from liability (NYSCEF Doc No. 74 at 7). However, Justice Butler analyzed Xinos's right only as an indemnitee, leaving the question of possible statutory or vicarious liability unanswered. Justice Butler in his decision writes,
" ‘A court may render a conditional judgment on the issue of contractual indemnity, pending determination of the primary action so that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may be reimbursed’ ( Jardin v. A Very Special Place Inc. , 138 AD3d 927 [2d Dept 2015], quoting Arriola v. City of New York , 128 AD3d 747, 748-749 [2d Dept 2015] ). ‘The party seeking contractual indemnification must establish that it was free from negligence and that it may be held liable solely by virtue of statutory or vicarious liability’ ( Arriola , 128 AD3d at 749 ; Van Nostrand v. Race & Rally Constr. Co., Inc. 114 AD3d 664, 667 [2d Dept 2014] )" (NYSCEF Doc No. 70 at 3 [emphasis added] ).
Accordingly, GNY is entitled to a declaration that SNIC is obligated to defend 299.
IV. Whether SNIC Must Defend Blue in the Underlying Action
However, GNY has failed to establish that Blue was named as an additional insured under the same policy. GNY's argument that the court need not "probe deeper" in examining the relationship between 299 and Blue is unavailing; likewise is its argument that Xinos's clear intent was to name Blue as an additional insured (reply memorandum of law in support of motion for partial summary judgment, NYSCEF Doc No. 76 at 3). GNY points to the contract documents that designate the Owner as "299 Owners Corp. c/o Blue Woods Management Group Inc."
The "c/o" symbol ,
" ‘means ‘in care of’ and means that another only has ‘custody’ or ‘temporary charge’ over an item belonging to another .... The symbol is ‘used especially in the phrase care of or in care of on mail sent to a person through another person or other agency’ " ( Scolnick v. Bank One, N.A. , 2014 NY Slip Op 30612[U], *5 [Sup Ct, NY County 2014] [internal citation omitted] ). It does not, as plaintiff argues, confer upon Blue, the title of Owner, as defined within A201-2007 § 2.1.1. Section 2.1.1 states:
"The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner's approval or authorization. The term "Owner" means the Owner or the Owner's authorized representative " (NYSCEF Doc No. 59 at § 2.1.1 [emphasis added] ).
The record does not contain a written designation of 299's authorized representative as Blue. In A101-1997 § 7.3, "The Owner's Representative" is left blank (NYSCEF Doc No. 58 at 7.3). Neither is Xinos's intention clear from the contracting documents that when entering into A201-2007 it intended to name a management company that receives 299's mail as an additional insured. Accordingly, GNY has failed to establish that Blue qualifies as an additional insured.
V. Priority of Coverage
GNY requests a declaration that its policy is excess over SNIC's policy. SNIC does not deny that its policy is primary and non-contributory but alleges that Tudor's policy must first be exhausted before its obligation is triggered. As noted above, Tudor is no longer a party to this action and need not be for the court to determine priority of coverage between SNIC and GNY. SNIC is free to seek equitable contribution as against Tudor in the Queens County declaratory judgment action.
"Where the same risk is covered by two or more policies, each of which was sold to provide the same level of coverage (as is the case here), priority of coverage (or, alternatively, allocation of coverage) among the policies is determined by comparison of their respective ‘other insurance’ clauses" ( Sport Rock Intl., Inc. , 65 AD3d at 18 ). "It is settled that a primary insurer has the obligation to defend without any entitlement to contribution from an excess insurer" ( Firemen's Ins. Co. of Washington, D.C. v. Federal Ins. Co. , 233 AD2d 193, 193 [1st Dept 1996], lv denied 90 NY2d 803 [1997] ).
The court first considers the language of the SNIC policy. As priority of coverage was not required by the trade contract between Xinos and 299, Endorsement #21 ("Primary and Non-Contributory") of the SNIC policy does not apply. Therefore, the court turns to the default language under Form CG 00 01 12 07 § 4a. ("Primary Insurance"), which states that SNIC's policy is "primary except when Paragraph b. below applies" (NYSCEF Doc No. 65 at Form CG 00 01 10 1). None of the conditions in paragraph b. apply.
GNY's policy contains Form CG 00 05 02/06, which states, "This insurance is excess over. Any other primary insurance available to [299] covering liability for damages arising out of the premises or operations, or products or completed operations, for which [299] ha[s] been added as an additional insured by attachment of an endorsement" (Amendment of Other Insurance (Occurrence Version), NYSCEF Doc No. 64). Xinos agreed, in its contract, to name 299 as an additional insured.
Accordingly, GNY is entitled to a declaration that SNIC's policy is primary and non-contributory over its own coverage to 299.
VI. Reimbursement of Costs Incurred
GNY seeks to recover the defense costs that it incurred in defending 299 in the underlying action. GNY also requests costs incurred in bringing this motion.
"It is well settled in New York that a prevailing party may not recover attorneys' fees from the losing party except where authorized by statute, agreement or court rule ( U.S. Underwriters Ins. Co. v. City Club Hotel, LLC , 3 NY3d 592, 597 [2004] ). As a result, GNY's request for costs incurred in bringing this motion must be denied.
However, when an insurer is in breach of its obligation to defend, the appropriate remedy is to reimburse the insured for any and all legal costs incurred in defending the underlying action ( Urban Resource Inst. v. Nationwide Mut. Ins. Co. , 191 AD2d 261, 262 [1st Dept 1993], lv dismissed and denied in part 82 NY2d 704 [1993] ). The insured is also entitled to interest from the date it paid each legal bill ( National Union Fire Ins. Co. of Pittsburgh, PA v. Greenwich Ins. Co. , 103 AD3d 473, 474 [1st Dept 2013] ). Interest may also be awarded "from a single reasonable intermediate date" ( CPLR 5001 [b] ). Reimbursement of defense costs is determined by the date the insurer received tender ( Bovis Lend Lease LMB v. Royal Surplus Lines, Ins. Co. , 27 AD3d 84, 94 [1st Dept 2005] ).
The court refers the issue of the amount of attorneys' fees incurred in the underlying action, from August 20, 2014 to date, to a Special Referee to hear and report with recommendations (see W & W Glass Sys., Inc. v. Admiral Ins. Co. , 2010 NY Slip Op 32120[U], [referring the amount of defense costs incurred in underlying action to date to Special Referee to hear and report] ).
CONCLUSION
Accordingly, it is
ORDERED that the motion (sequence number 002) of plaintiff Greater New York Mutual Insurance Company for summary judgment is granted to the extent of (1) declaring that defendant State National Insurance Company, Inc. is obligated to defend 299 Owners Corp. on a primary and noncontributory basis; and (2) referring the issue of the amount of attorneys' fees, costs, and expenses incurred by plaintiff in the underlying action, from August 20, 2014 to date, to a Special Referee to hear and report with recommendations, and is otherwise denied; and it is further
ADJUDGED and DECLARED that defendant State National Insurance Company, Inc. is obligated to provide a defense for 299 Owners Corp. in the underlying personal injury action entitled Chimborazo v. Blue Woods Management Group, Inc. , Index No. 715135/14, currently pending in Sup Ct, Queens County; and it is further,
ADJUDGED and DECLARED that the coverage afforded by defendant State National Insurance Company, Inc. for 299 Owners Corp. is primary to the coverage afforded by plaintiff Great New York Mutual Insurance Company; and it is further
ORDERED that a Judicial Hearing Officer (JHO) or Special Referee shall be designated to hear and report to this court on the following individual issues of fact, which are hereby submitted to the JHO/Special Referee for such purpose:
(1) the issue of the amount of reasonable attorneys' fees, costs, and expenses incurred by plaintiff from August 20, 2014 to date in the defense of the underlying personal injury action entitled Chimborazo v. Blue Woods Management Group, Inc. , Index No. 715135/14, currently pending in Sup Ct, Queens County; and it is further
ORDERED that the powers of the JHO/Special Referee shall not be limited beyond the limitations set forth in the CPLR; and it is further
ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119, 646-386-3028 or spref@nycourts.gov), for placement at the earliest possible date upon the calendar of the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are posted on the website of this court at www.nycourts.gov/supctmanh at the "References" link), shall assign this matter at the initial appearance to an available JHO/Special Referee to hear and report as specified above; and it is further
ORDERED that counsel shall immediately consult one another and counsel for plaintiff shall, within 15 days from the date of this Order, submit to the Special Referee Clerk by fax (212-401-9186) or e-mail an Information Sheet (accessible at the "References" link on the court's website) containing all the information called for therein and that, as soon as practical thereafter, the Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter upon the calendar of the Special Referees Part; and it is further
ORDERED that the plaintiff shall serve a pre-hearing memorandum within 24 days from the date of this order and the defendant shall serve objections to the pre-hearing memorandum within 20 days from service of plaintiff's papers and the foregoing papers shall be filed with the Special Referee Clerk prior to the original appearance date in Part SRP fixed by the Clerk as set forth above; and it is further
ORDERED that the parties shall appear for the reference hearing, including with all witnesses and evidence they seek to present, and shall be ready to proceed with the hearing, on the date fixed by the Special Referee Clerk for the initial appearance in the Special Referees Part, subject only to any adjournment that may be authorized by the Special Referees Part in accordance with the Rules of that Part; and it is further
ORDERED that, except as otherwise directed by the assigned JHO/Special Referee for good cause shown, the trial of the issue specified above shall proceed from day to day until completion and counsel must arrange their schedules and those of their witnesses accordingly; and it is further
ORDERED that counsel shall file memoranda or other documents directed to the assigned JHO/Special Referee in accordance with the Uniform Rules of the Judicial Hearing Officers and the Special Referees (available at the "References" link on the court's website) by filing same with the New York State Courts Electronic Filing System (see Rule 2 of the Uniform Rules); and it is further
ORDERED that any motion to confirm or disaffirm the Report of the JHO/Special Referee shall be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform Rules for the Trial Courts; and it is further
ORDERED that, unless otherwise directed by this court in any Order that may be issued together with this Order of Reference to Hear and Report, the issues presented in any motion identified in the first paragraph hereof shall be held in abeyance pending submission of the Report of the JHO/Special Referee and the determination of this court thereon.