New York City Hous. Auth. v Rutgers Cas. Ins. Co.

New York City Hous. Auth. v Rutgers Cas. Ins. Co. 2009 NY Slip Op 05379 [63 AD3d 626] June 30, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 5, 2009

New York City Housing Authority, Respondent,
v
Rutgers Casualty Insurance Company, Appellant.

—[*1] Bivona & Cohen, P.C., New York (Elio M. DiBerardino of counsel), for appellant.

Lester Schwab Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Debra A. James, J.), entered on or about September 23, 2008, which, upon reargument, adhered to its prior order, entered January 18, 2008, inter alia, granting the motion of plaintiff New York City Housing Authority (NYCHA) for partial summary judgment to the extent of declaring that defendant is obligated to defend NYCHA in an underlying personal injury action and directing defendant to reimburse NYCHA for any defense costs expended, unanimously affirmed, without costs.

The motion court properly determined that NYCHA, as an additional insured under the policy defendant issued to NYCHA's contractor, is entitled to a defense from defendant in the underlying action, where it is alleged that the plaintiff fell on construction debris that was negligently placed and allowed to remain at the exterior stairwell at the entrance of a building. Since the allegations of the underlying complaint suggest a reasonable possibility of coverage, defendant is obligated to defend NYCHA in that action (see Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137 [2006]). Contrary to defendant's claim, there are triable issues of fact as to whether the contractor created the alleged defective condition and whether its work was ongoing at the time of the accident (see Perez v New York City Hous. Auth., 302 AD2d 222 [2003]).

We have considered defendant's remaining arguments and find them unavailing. Concur—Gonzalez, P.J., Friedman, Moskowitz, Renwick and Freedman, JJ.