DD 11th Ave., LLC v Harleysville Ins. Co. of N.Y.

DD 11th Ave., LLC v Harleysville Ins. Co. of N.Y. 2015 NY Slip Op 05421 Decided on June 23, 2015 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 June 23, 2015
Mazzarelli, J.P., Sweeny, Acosta, Clark, Kapnick, JJ.
103362/11 15519A 15519

[*1] DD 11th Avenue, LLC, et al., Plaintiffs-Respondents,

v

Harleysville Insurance Company of New York, Defendant-Appellant, S.J. Electric, Inc., Defendants.

Gallo Vitucci Klar LLP, New York (Daniel P. Mevorach of counsel), for appellant.

Cornell Grace, P.C., New York (Laura M. Maletta of counsel), for respondents.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered June 17, 2014, which, to the extent appealed from, granted plaintiffs' motion for summary judgment to the extent of declaring that the policy issued by defendant insurance company provides primary and not excess coverage to plaintiffs, unanimously affirmed, with costs. Appeal from order (same court and Justice), entered November 1, 2013, unanimously dismissed, without costs, as subsumed in the appeal from the order entered June 17, 2014.

Defendant insurance company issued a policy for liability coverage to defendant, S.J. Electric, Inc. Plaintiffs, the owner of the premises as well as the construction and development managers, who were listed as additional insureds on the policy, sought coverage for an underlying personal injury claim brought by an employee of S.J. Electric. Defendant insurance company declined to provide coverage, arguing, among other things, that its coverage obligations are excess to plaintiffs' own coverage through a Contractor Controlled Insurance Program (CCIP).

The motion court correctly determined that the plain language of the policy provides primary coverage to plaintiffs in the underlying action. The terms of the CCIP endorsement cannot pertain to plaintiffs as additional insureds; by its plain language, it only pertains to the named insured, S.J. Electric. In addition, the additional insured endorsement specifically provides that "any coverage ... to an additional insured shall be excess ... unless the written contract' specifically requires that this insurance be primary ..." and S.J. Electric expressly

contracted to provide plaintiffs primary coverage (see Bovis Lend Lease LMB Inc. v Great Am. [*2]Ins. Co., 53 AD3d 140, 145-146 [1st Dept 2008]).

We have considered the parties' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 23, 2015

CLERK