State Ins. Fund v Selective Ins. Co. of Am.

State Ins. Fund v Selective Ins. Co. of Am. 2019 NY Slip Op 01334 Decided on February 21, 2019 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 February 21, 2019
Friedman, J.P., Gische, Kapnick, Gesmer, Kern, JJ.
652892/13 8491 8490

[*1]The State Insurance Fund, Plaintiff-Respondent,

v

Selective Insurance Company of America, Defendant-Appellant.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Michael J. Marone of counsel), for appellant.

Montfort, Healy, McGuire & Salley LLP, Garden City (James Michael Murphy of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered November 14, 2017, awarding plaintiff the aggregate amount of $1,456,904.11, unanimously reversed, on the law, without costs, the judgment vacated, and it is declared that defendant does not owe coverage under its umbrella policy. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered on or about October 13, 2017, which denied defendant's motion for summary judgment and granted plaintiff's motion for summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Due to the employer's liability endorsement, which is clear and unambiguous, the umbrella policy issued by defendant did not cover All Waste Interiors LLC (see Monteleone v Crow Constr. Co., 242 AD2d 135, 140-141 [1st Dept 1998], lv denied 92 NY2d 818 [1998]).

Both sides agree that New Jersey law governs the issue of whether defendant should be estopped from denying coverage to All Waste. None of the situations mentioned in Griggs v Bertram (88 NJ 347, 443 A2d 163 [1982]) apply to this case.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 21, 2019

CLERK