City of New York v New York Mar. & Gen. Ins. Co.

City of New York v New York Mar. & Gen. Ins. Co. 2014 NY Slip Op 08121 Decided on November 20, 2014 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 20, 2014
Tom, J.P., Friedman, Andrias, Feinman, Kapnick, JJ.
13552 450008/13

[*1] The City of New York, Plaintiff-Respondent,

v

New York Marine and General Insurance Company, Defendant-Appellant, Britt Realty Development Corp., Defendant.

Carroll McNulty & Kull LLC, New York (Ann Odelson of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondent.

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered on or about May 1, 2014, which, to the extent appealed from as limited by the briefs, declared that defendant New York Marine and General Insurance Company (Marine) is obligated to defend plaintiff City of New York in an underlying personal injury action, and denied Marine's cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The underlying complaint alleged that the plaintiff therein tripped and fell on a tree stump. It was further alleged that the negligence of defendant Britt Realty Development Corp. contributed to the accident by permitting construction debris on the sidewalk, or otherwise creating an obstruction. Since these allegations are potentially covered by the Marine policy issued to Britt, in which the City was named as an additional insured "only with respect to operations performed by or on behalf of [Britt] for which the [City] has issued a permit," Marine is obligated to defend the City in the underlying action (cf. QBE Ins. Corp. v Jinx-Proof Inc., 102 AD3d 508, 509-510 [1st Dept 2013], affd 22 NY3d 1105 [2014]).

Certainly, since, at this juncture, the claims at issue may have arisen from a covered event, namely Britt's management of its construction activities, Marine is obligated to provide the City a defense.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 20, 2014

CLERK