Wyndham E. Condominiums at Garden City v Brickman Group Ltd.
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Wyndham E. Condominiums at Garden City v Brickman Group Ltd. 2012 NY Slip Op 32055(U) July 25, 2012 Supreme Court, Nassau County Docket Number: 00337/12 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. --------- ------------- -------- ------- ---- ------ ------ --------- -- --- )( ---- ------ ----- ------- ---- ----- - -- - --- ------------------ -------- [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: LA. PART 13 THE WYDHAM EAST CONDOMINIUMS AT GARDEN CITY, Plaintiff DECISION AND ORDER - against - Inde)( No: 00337/12 THE BRICKMAN GROUP LTD., LLC and ACE AMERICAN INSURANCE COMPANY, Motion Seq. No: 001 , 003 & 004 Original Retur Date: 04- 06- Defendants. PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court. The following named papers numbered 1 to 14 were submitted on these Motions and Cross- Motions on May 25 2012: Papers numbered Notice of Motion and Affirmation (Seq. 001) Memorandum of Law in Support Notice of Cross Motion, Affirmation and Memorandum of Law (Seq. 003) Affrmation and Affdavits (2) in Opposition of Cross Motion and in Furer Support of Second Cross-Motion Memorandum of Law in Opposition to Plaintiffs Reply Affirmation Notice of Cross Motion (Seq. 004) Memorandum of Law in Further Support Affrmation in Opposition The motion by defendant The Brickman Group Ltd. , LLC (Brickman) pursuant to CPLR 3211(a)(4) for an Order dismissing the complaint as to said defendant (Motion Sequence 001); and [* 2] the cross-motion by plaintiff Wyndham East Condominiums at Garden City (Wyndham) pursuant to CPLR 3212 for an Order granting summar judgment in favor of plaintiff, declaring that plaintiff is entitled to insurance coverage , defense and indemnification by defendant American Insurance Company (ACE), and reimbursement of the amount e)(pended in defense against the underlying personal injur action (Motion Sequence 003); and the cross-motion by defendant ACE pursuant to CPLR 3212 for sumar judgment declaring that plaintiff Wyndham does not qualify as an additional insured under the policy of insurance issued by defendant ACE to defendant Brickman and dismissing the complaint (Motion Sequence 004), are decided as follows: This action arises in connection with a lawsuit against Wyndham , the plaintiffherein, brought by an employee of defendant Brickman (Wilver Chavez)! . Wilver Chavez allegedly sustained injuries on December 5, 2007 when he fell off a ladder while installng holiday lights on trees located at The Wyndham East Condominium comple)( pursuant to a work authorization entered into by Wyndham and Brickman on November 29 2007. The theories ofliability set forth in the complaint 200 , 240 and 241. On August 12 2010 are based on negligence and violations of Labor Law plaintiff Wyndham filed a third-par complaint against Brickman in the underlying Chavez action asserting claims sounding in contribution , common law indemnity, contractual indemnity and breach of contract. Due to the failure of defendant ACE to assume the defense of Wyndham in the underlying personal injury action , plaintiff Wyndham commenced the instant declaratory judgment action on Januar 12 , 2012 , seeking a declaration that plaintiff Wyndham is an additional insured on the The action Wilver Chavez Wyndham East of Garden City, Nassau County on March 16 2010 under Inde)( No. 5217/10. was commenced in Supreme Court: [* 3] general liability insurance policy issued by defendant ACE to defendant Brickman (bearing policy No. *********6725R); that pursuant to said policy, defendant ACE is required to defend , action , and reimburse plaintiff for any and vis-a-vis the Chavez and indemnify plaintiff Wyndham all sums paid by plaintiff in insure Chavez defending against the action; and defendant Brickman is obligated to indemnify plaintiff Wyndham for any judgment awarded against plaintiff herein in the Chavez action based on an insurance procurement clause contained in the Rider to the Landscape Maintenance Agreement dated as of November 18 2005. Defendant Brickman has moved to dismiss the complaint pursuant to CPLR 32121(a)(4) predicated on the grounds that the claims asserted against defendant Brickman are duplicative ofthe claims asserted against said defendant by plaintiff Wyndham in the second and third causes of action ofthe third- par Chavez complaint interposed by Wyndham in the action. Pursuant to CPLR 3211(a)(4), a Cour has broad discretion as to the disposition ofan action Morgan Barrington Fin. Servs. , Inc., when another action is pending. Nahzi 85 AD3d 1135 (2 Dept2011). To warant dismissal , the two actions must be sufficiently similar and the relief sought Simonetti must be the same or substantially the same. In considering whether to dismiss a later fied Larson 44 AD3d 1028 (2 Dept 2007). action in deference to one fied earlier , it is not necessar that the precise legal theories presented in the first action also be presented in the second action. Cherico, Cherico Assoc. Midollo 67 AD3d 622 (2 element is that the pleadings in both actions are based on the same actionable wrongs. Dept 2009). Rather , the critical DAIJ, Inc. Roth 85 AD3d 959 960 (2 Dept2011). A difference in the paries in the two competing lawsuits wil not defeat a CPLR 3211(a)(4) motion where both suits arise out of the same subject matter and series of alleged wrongs. ACE Fire Underwriters Ins. Co. ITT Indus. , Inc. 14 Misc 3d 1211(A), [* 4] affrmed 44 AD3d 408 (1 st Dept). 2007). While complete identity of paries is not a necessity for dismissal under CPLR 3211(a)(4), there must be , at least , a substantial identity of paries , i. , at Donohue 189 AD2d 807 Proietto least one plaintiff and one defendant common in each action. Dept 1993). Given the substantial identity of paries , seeking the same, or substantially the same relief in both the third- par complaint in the Chavez action and the action presently before this Cour defendant Brickman s motion pursuant to CPLR 3211(a)(4) to dismiss the complaint herein as to said defendant is granted. A comparison of the complaint in this action with the third-par complaint establishes that both arise from the same actionable wrong and plaintiff s indemnification and breach of contract claims against defendant Brickman in this action are substantially similar , if not identical , to the indemnification and breach of contract claims asserted by Wyndham against defendant Brickman in the third-par complaint in the Chavez action. Since the plaintiff Wilver Chavez was injured while performing work as an employee of defendant Brickman pursuant to defendant Brickman s contract with plaintiff Wyndham , Wyndham contends that defendant ACE is obligated to defend it the Chavez action. Despite due demand by plaintiff Wyndham ' s insurance carier,2 defendant ACE has refused to honor its alleged obligation to defend and indemnify plaintiff, contending that the work authorization was not a part of the Landscape Management Agreement and , therefore , was not covered by the terms and conditions of that agreement. In support of its cross-motion for summary judgment declaring that it is entitled to insurance Plaintiff Wyndham is named as a certificate holder on a certificate of insurance dated June 20 , 2007 issued by defendant ACE. [* 5] coverage , defense and indemnification by defendant ACE , plaintiff relies on the Rider to the Landscape Management Agreement wherein defendant Brickman agreed: to indemnify, defend and hold harmless Owner , his Managing Agent , their respective employees and agents from any and all claims suits , damages , liabilities , professional fees , including attorney s fees costs , court costs , e)(penses and disbursements related to death personal injur or propert damage. Plaintiff Wyndham asserts that since Wilver Chavez was injured while performing work as an employee of defendat Brickman at the Wyndham premises pursuant to Brickman s contract with plaintiffherein , defendant ACE is required to insure and defend Wyndham under the general liability insurance policy issued by ACE to Brickman , on which plaintiff Wyndham is an additional insured. In this regard , plaintiff Wyndham asserts that if a complaint contains any facts or allegations which bring the claim even potentially within the protection purchased , the insured is obligated to defend. Defendant ACE opposes the Wyndham s cross-motion and has moved for summary judgment dismissing plaintiff s complaint. Defendant argues that defendant Brickman was not obligated to obtain insurance coverage naming plaintiff as an additional insured vis-a-vis the installation of holiday lights by defendant Brickman at the Wyndham comple)( pursuant to the work authorization dated November 29 2007. Defendant ACE fuher argues that there is no provision in the work authorization , an entirely separate and distinct contract from the Landscape Management Agreement , requiring defendant Brickman to procure liability insurance naming plaintiff Wyndham as an additional insured nor a provision which incorporates the insurance procurement provision of the Landscape Management Agreement into the work authorization. While defendants ACE and Brickman maintain that plaintiff Wyndham is not entitled to coverage under the ACE policy as an additional insured because defendant Brickman did not [* 6] perform the holiday light work under a contract or agreement that required defendant Brickman to procure liability insurance naming plaintiff as an additional insured , the argument is unavailing. Plaintiff Wyndham contends , and this Court agrees , that the work authorization is not a separate and distinct contract. Rather , it is a written order for additional work to be performed by defendant Brickman to which the provisions ofthe Rider to the Landscape Management Agreement apply as set forth in paragraph 5 , which provides as follows: It is the intent of this contract that Contractor provide all materials equipment and labor necessar to perform the work. If the Owner orders , from time to time , additional work or changes , by altering, adding to , or deducting from the work , the provisions of this Agreement shall apply to such additional work. No order for additional work or changes given to the Contractor (and no cancellation or any such order) shall be deemed authorized or to bind or obligate the Owner in any way unless same shall have been previously signed by Owner. In general , it is the Court which bears the responsibilty of determining the rights and obligations ofthe paries under an insurance contract in accordance with the specific language of the paricular policy. Jahier Liberty Mut. Group, 64 AD3d 683 684 (2 Dept 2009). Unambiguous provisions must be given their plain and ordinar meaning. Bernard Janowitz Const. Herrnsdorf Corp. 96 AD3d 1011 (2nd Dept 2011). It is the insured' s burden to establish coverage and the insurer s burden to prove the applicability of an e)(clusion. 881 , 881 (2 Rhodes Liberty Mut. Ins. Co. 67 AD3d Dept 2009). An insurer s duty to defend , which is broader than its duty to indemnify, arises whenever the allegations in the complaint against the insured fall within the scope ofthe risk undertaken by the insured , regardless of how false or groundless those allegations might be. Liberty Mut. Ins. Co. Rhodes 67 AD3d 881 882 (2 Dept 2009). To be relieved of its duty to defend on the basis of a policy e)(clusion , an insurer must [* 7] establish that the e)(clusion is stated in clear and unmistakable language , is subject to no other Great Am. Restoration Servs., Inc. reasonable interpretation and applies in the particular case. Scottsdale Ins. Co. 73 AD3d 773 , 776 (2 Dept 20 1 0) (citations and quotation marks omitted). Any ambiguity in an e)(clusionar clause must be constred most strongly against the insurer. Aetna Cas. & Cable Co. Sales, Inc. 84 AD3d 1318 (2 Sur. Co. Dept 2011), 60 NY2d 390 , 398 (1983); Iv to appeal denied ambiguity is whether the language of the insurance interpretations. State of New York Ace Wire Marine Motor Lancer Ins. Co. 17 NY3d 714 (2011). The test for contract is susceptible of two reasonable Home Indem. Co. 66 NY2d 669 671 (1985). Although , as defendant ACE alleges , there is nothing in the work authorization that requires defendant Brickman to procure liability insurance naming plaintiff Wyndham as an additional insured in connection with the holiday lighting installation, the quoted language of paragraph 5 of the Rider clearly states that the provisions of the Landscape Management Agreement apply to additional work performed pursuit to a written work order. As such , defendant ACE' s argument that plaintiff Wyndham is not entitled to coverage as an additional insured because defendant Brickman did not perform the holiday light work under a contract and/or pursuant to an agreement that required defendant Brickman to procure liability insurance naming plaintiff Wyndham as an additional insured lacks merit. Similarly lacking merit are its contentions that the work authorization is a separate contract and defendant Brickman s performance of holiday lighting work under the work authorization does not fall within the ambit of the " scope of the work" provision of the Landscape Management Agreement , which includes: "maintenance , care and housekeeping of all landscaped areas , but specifically e)(cludes paved areas, lights , signs and fences. " The language on which defendant ACE relies does not clearly and unistakenly e)(clude from coverage the [* 8] installation of holiday lights pursuant to a written work authorization for additional work as provided for in the Landscape Management Agreement. Accordingly, after due deliberation , it is ORDERED , that the motion by defendant Brickman to dismiss the complaint against it is granted , as is the cross-motion by plaintiff for sumar judgment. Since the work related to the installation of holiday lighting is par of the scope of work covered by the terms of the Landscape Management Agreement , it is hereby declared that plaintiff Wyndham qualifies as an additional insured under the ACE policy issued to defendant Brickman and said plaintiff is entitled Chavez indemnification and defense from defendant ACE in the Chavez amount e)(pended thus far in defense against the action and to be reimbursed for the action. The cross-motion by defendant ACE for summar judgment is denied. Settle judgment. This constitutes the Decision and Order of the Court. Dated: Mineola, New York July 25 2012 ENTER: Copies mailed to: Hammil , O' Brien , Croutier , Dempsey, Pender & Koehler , P. Attorneys for Plaintiff Sedgwick , LLP Attorneys for Defendants to ENTERED JUl 27 2012 M,, jAU COUNTY S OFfICt: COUNTY CLERK'
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