Progressive Northeastern Ins. Co. v Penn-Star Ins. Co.

Progressive Northeastern Ins. Co. v Penn-Star Ins. Co. 2011 NY Slip Op 08220 Decided on November 15, 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 November 15, 2011
Andrias, J.P., Friedman, DeGrasse, Freedman, Manzanet-Daniels, JJ.
6049 307512/08

[*1]Progressive Northeastern Insurance Company, Plaintiff-Respondent,

v

Penn-Star Insurance Company, Defendant-Appellant, A#1 Pelham Corporation, et al., Defendants.




Miranda Sambursky Slone Sklarin Verneniotis, LLP, Mineola
(Steven Verveniotis of counsel), for appellant.
Carman, Callahan & Ingham, LLP, Farmingdale (Michael F.
Ingham of counsel), for respondent.

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about August 30, 2010, which granted plaintiff's motion for summary judgment, denied defendant Penn-Star Insurance Company's cross motion for summary judgment, and declared that defendant is obligated to defend and indemnify A#1 Pelham Corporation in the underlying personal injury action and to reimburse plaintiff for any costs it has incurred in the defense of the underlying action, unanimously affirmed, with costs.

In this action for a declaratory judgment in an insurance coverage dispute, arising from a slip and fall on oil which occurred in the basement boiler room of a residential building one day after the insured's oil delivery truck delivered oil to the building, the motion court correctly found that the general automobile policy issued to the insured by plaintiff does not provide coverage for the underlying personal injury action. Defendant's argument that the automobile policy was implicated simply because the oil was transported in a covered vehicle is unpersuasive (see Wausau Underwriters Ins. Co. v St. Barnabas Hosp., 145 AD2d 314, 315 [1988]; see also Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597, 599-600 [2006]).

Defendant's argument regarding the implication of its own automobile exclusion clause is, for the same reasons, unpersausive. Neither do the facts of this case implicate the policy's exclusion from products-completed operations hazard coverage for "[w]ork that has not yet been completed or abandoned," in as much as the slip-and-fall accident occurred one day after the insured made the oil delivery.

Finally, summary judgment was not premature. Defendant has failed to present any "evidentiary basis [for its] suggest[ion] that discovery may lead to relevant evidence" (Bailey v New York City Tr. Auth., 270 AD2d 156, 157 [2000]). Further, under the circumstances of this [*2]case, plaintiff's counsel was entitled to rely on his affidavit in support of plaintiff's motion for summary judgment (see Zuckerman v New York, 49 NY2d 557, 563 [1980]).

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

ENTERED: NOVEMBER 15, 2011

CLERK