Opinion
2012-02-14
VBH LUXURY, INCORPORATED, Plaintiff, v. 940 MADISON ASSOCIATES LLC, Third–Party Respondent,Excelsior Insurance Company, Third–Party Appellant, et al., Third–Party Defendant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Richard E. Lerner and Judy C. Selmeci of counsel), for third-party appellant. Baker & Hostetler LLP, New York City (David Einhorn of counsel), for third-party respondent.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Richard E. Lerner and Judy C. Selmeci of counsel), for third-party appellant. Baker & Hostetler LLP, New York City (David Einhorn of counsel), for third-party respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs, the judgment of Supreme Court reinstated, and the certified question answered in the negative.
Third-party plaintiff/landlord 940 Madison Associates, LLC is an additional insured under a commercial general liability policy issued by third-party defendant Excelsior Insurance Company to plaintiff/tenant VBH Luxury, Inc. “only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [tenant].” Although landlord would be entitled to a defense in an action commenced against it by a third party for an injury suffered on the leased premises ( see ZKZ Assoc. v. CNA Ins. Co., 89 N.Y.2d 990, 991, 657 N.Y.S.2d 390, 679 N.E.2d 629 [1997] ), the policy does not provide coverage for liability to its co-insured for damage to property owned, rented, or occupied by the insured ( see Insurance Corp. of N.Y. v. Cohoes Realty Assoc., L.P., 50 A.D.3d 1228, 1229–1230, 854 N.Y.S.2d 815 [3d Dept.2008]; Utica Mut. Ins. Co. v Watertown Indus. Ctr. Local Dev. Corp., 9 A.D.3d 836, 837, 781 N.Y.S.2d 392 [4th Dept.2004], lv. denied 11 A.D.3d 1053, 783 N.Y.S.2d 896 [4th Dept.2004] ). Thus, Excelsior was not obligated to defend landlord in the underlying action.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, judgment of Supreme Court, New York County, reinstated, and certified question answered in the negative, in a memorandum.