Utica Ins. Co. v RJR Maintenance Group, Inc.

Utica Ins. Co. v RJR Maintenance Group, Inc. 2011 NY Slip Op 09193 Decided on December 20, 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 20, 2011
Saxe, J.P., Catterson, Moskowitz, Acosta, Renwick, JJ.
6396 110204/09

[*1]Utica Insurance Company, Plaintiff-Respondent,

v

RJR Maintenance Group, Inc., et al., Defendants, St. John's University, Defendant-Appellant.




Harrington, Ocko & Monk, LLP, White Plains (I. Paul
Howansky of counsel), for appellant.
Farber Brocks & Zane L.L.P., Mineola (Audra S. Zane of
counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Judith J. Gische, J.), entered September 24, 2010, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for summary judgment declaring that it is not obligated to defend or indemnify defendant RJR Maintenance Group, Inc. (RJR) in an underlying personal injury action, unanimously affirmed, with costs.

The employee exclusion in the subject insurance policy unambiguously states that the insurance did not apply to "bodily injury to any employee of any insured, to any contractor hired or retained by or for any insured, or to any employee of such contractor" sustained during the course of employment. Accordingly, plaintiff properly disclaimed coverage based upon the status of defendant Edwards (the underlying plaintiff) as an employee of the subcontractor of RJR (the insured) at the time of the alleged accident (see 385 Third Ave. Assoc., L.P. v Metropolitan Metals Corp., 81 AD3d 475, 476 [2011], lv denied 17 NY3d 702 [2011]).

Moreover, defendant St. John's University lacked standing to challenge the timeliness of plaintiff's notice of disclaimer of coverage to RJR. "The contemporary rule is that a party has standing to enforce a statutory right if its abuse will cause him injury and it may fall within the zone of interest' protected by the legislation" (Matter of Schwartz v Morgenthau, 7 NY3d 427, 432 [2006] [internal quotation marks and citation omitted]). Here, however, there is no basis to find that St. John's was in the "zone of interest" protected by Insurance Law § 3420(d). St. John's failed to establish that it was an intended beneficiary of the insurance policy (see Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 33 [1979], affd 49 NY2d 924 [1980]), or that it could otherwise assert RJR's rights under the policy (cf. Public Serv. Mut. Ins. Co. v AYFAS Realty Corp., 234 AD2d 226, 228 [1996], lv dismissed 90 NY2d 844 [1997]).

We have reviewed St. John's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [*2]

ENTERED: DECEMBER 20, 2011

CLERK