1515 Broadway Fee Owner, LLC v Seneca Ins. Co., Inc.

1515 Broadway Fee Owner, LLC v Seneca Ins. Co., Inc. 2011 NY Slip Op 08803 Decided on December 6, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2011
Friedman, J.P., Catterson, Renwick, DeGrasse, JJ.
6228 603461/08

[*1]1515 Broadway Fee Owner, LLC, et al., Plaintiffs-Respondents-Appellants,

v

Seneca Insurance Company, Inc., Defendant-Appellant-Respondent.




Tese & Milner, New York (Michael M. Milner of counsel), for
appellant-respondent.
Wechsler & Cohen, LLP, New York (Debora A. Pitman of
counsel), for respondents-appellants.

Order, Supreme Court, New York County (Debra A. James, J.), entered March 1, 2011, which denied defendant's motion for summary judgment, and granted in part plaintiffs' cross motion for partial summary judgment and declared that defendant was obligated to defend plaintiffs in the underlying personal injury action, unanimously modified, on the law, to further declare that defendant's insurance policy afforded primary coverage to plaintiffs, and otherwise affirmed, without costs.

At issue is whether the stairwell area where the underlying accident occurred is covered by the additional insured clause in the policy procured by the underlying plaintiff's employer from Seneca. The clause extends coverage to plaintiffs herein, the employer's landlord and the managing agent of the building. Coverage exists because the underlying claim arose out of the "maintenance or use" of the leased premises, within the meaning of the additional insured clause. The accident occurred in the course of an activity necessarily incidental to the operation of the space leased by the employer. Furthermore, the accident happened in a part of the premises that was used for access in and out of the leased space when the freight elevator was not in service (see ZKZ Assoc. v CNA Ins. Co., 89 NY2d 990 [1997]; New York Convention Ctr. Operating Corp. v Cerullo World Evangelism, 269 AD2d 275, 276 [2000]). This result is consistent with the lease, which required the employer to procure insurance against any liabilities "on or about the demised premises or any appurtenances thereto" (Jenel Mgt. Corp. v Pacific Ins. Co., 55 AD3d 313, 313 [2008]). Accordingly, a duty to defend has been triggered and we need not address plaintiffs' argument that the disclaimer was inadequate.

Where all applicable policies have been made available for review (cf. Liberty Mut. Ins. Co. v Trystate Mech., Inc., 15 AD3d 236, 237 [2005]), priority of coverage can be determined as a matter of law (see Sport Rock Intl., Inc. v American Cas. Co. of Reading, Pa., 65 AD3d 12, 21 [2009]). The Seneca policy, providing additional insured coverage, is primary in the underlying action (see Tishman Constr. Corp. of N.Y. v American Mfrs. Mut. Ins. Co., 303 AD2d 323, 324 [2003]; see also Harleysville Ins. Co. v Travelers Ins. Co., 38 AD3d 1364, 1365 [2007], lv denied 9 NY3d 811 [2007]; Pav-Lak Indus., Inc. v Arch Ins. Co., 56 AD3d 287, 288 [2008]).

Because plaintiffs failed to address why an immediate hearing was required to determine past defense costs pursuant to CPLR 3212(c), the motion court did not improvidently exercise its [*2]
discretion in declining to grant such a request.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2011

CLERK