Tudor Ins. Co. v Sundaresen

Tudor Ins. Co. v Sundaresen 2016 NY Slip Op 07084 Decided on October 27, 2016 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 October 27, 2016
Acosta, J.P., Renwick, Saxe, Feinman, Kahn, JJ.
2046 101713/12

[*1]Tudor Insurance Company, Plaintiff-Appellant,

v

Narayan Sundaresen, et al., Defendants-Respondents, Everest Scaffolding, Inc., et al., Defendants.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Richard J. Nicolello of counsel), for appellant.

Marco & Sitaras, PLLC, New York (George Marco of counsel), for respondents.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered April 9, 2015, which denied plaintiff insurer's motion for summary judgment declaring that it has no duty to defend or indemnify the Sundaresen defendants in the underlying personal injury action, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment declaring that plaintiff has no duty to defend or indemnify the Sundaresen defendants in the underlying personal injury action.

The "Contractor or Subcontractor Limitation" endorsement within the insurance policy issued by plaintiff bars coverage of the underlying personal injury action. That endorsement bars coverage of "bodily injury" to, among others, "a contractor or subcontractor of the insured" (the exclusion). The evidence shows that the injured worker who brought the underlying action was hired by either the Sundaresen defendants (the insureds and owners of the premises) or defendant Excell (the general contractor). Accordingly, he was a "contractor or subcontractor of the insured" for the purposes of the exclusion. That the injured worker might be an independent contractor does not preclude him from being considered a contractor or subcontractor for purposes of the exclusion, since the terms "contractor" and "subcontractor" are not mutually exclusive and can include independent contractors (see Century Surety Co. v Franchise Contractors, LLC , 2016 WL 1030134, *8, 2016 US Dist LEXIS 31271, *21-22 [SD NY, March 10, 2016, No. 14-Civ-277 (NRB)], citing Matter of Johnson v Briggs , 34 AD2d 1068, 1068-1069 [3d Dept 1970]).

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

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 27, 2016

CLERK