Gagosian Gallery, Inc. v Eurostruct, Inc.

[*1] Gagosian Gallery, Inc. v Eurostruct, Inc. 2005 NY Slip Op 52239(U) [10 Misc 3d 1074(A)] Decided on November 1, 2005 Supreme Court, Kings County Schmidt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 1, 2005
Supreme Court, Kings County

Gagosian Gallery, Inc., et. al.,, Plaintiffs,

against

Eurostruct, Inc., et. al., Defendants.



1248/04

David I. Schmidt, J.

Upon the foregoing papers,

(1) defendants Treiber Group LLC and Treiber Group, Inc. (collectively, Treiber) move for an order, pursuant to CPLR 3211 and 3212, dismissing the complaint and all claims and cross-claims against them and granting judgment in Treiber's favor on their affirmative defenses; and cross-move, pursuant to CPLR 3212, for an order, (a) dismissing plaintiffs' complaint and all co-defendants' cross-claims, (b) granting summary judgment on their affirmative defenses, and (c) declaring that (i) Treiber owes no legal duty to plaintiffs in connection with the events alleged in their complaints, (ii) the Insurance Company of New York (Inscorp) policy fully covers Eurostruct in connection with the underlying lawsuit, (iii) the Inscorp policy fully covers 136 Wooster and Gagosian in connection with said underlying [*2]lawsuit, and (iv) the disclaimer letter dated April 23, 2001 is invalid as to Eurostruct, 136 Wooster and Gagosian;

(2) plaintiffs Gagosian Gallery, Inc., Larry Gagosian and 136 Wooster Corp. (136 Wooster) (collectively, the Gagosian plaintiffs) cross-move, pursuant to CPLR 3212, for an order, (a) granting partial conditional summary judgment against defendant Eurostruct, Inc. (Eurostruct) concerning common law and contractual indemnification, and (b) declaring the plaintiffs as "additional insured" on the Inscorp policy;

(3) Eurostruct cross-moves, pursuant to CPLR 3212, for an order granting summary judgment, (a) on its cross-claims against Inscorp, wherein it seeks a declaration that Inscorp is obligated to defend and indemnify it, and (b) on its complaint against Treiber; and

(4) In response to Treiber's motion, Inscorp cross-moves, pursuant to CPLR 3212, for an order (a) dismissing plaintiffs' complaint against it and declaring that it has no duty to defend or indemnify plaintiffs with regard to the underlying lawsuit, (b) dismissing Eurostruct's cross-claims against Inscorp and declaring that it has no duty to defend or indemnify Eurostruct with respect to said underlying lawsuit, and (c) dismissing Treiber's cross-claims.

BACKGROUND

The instant insurance coverage action arises out of a personal injury lawsuit. In December, 2000, Eurostruct, a general contractor, was hired by Gagosian to perform certain work on its premises, a gallery owned by 136 Wooster and leased by Gagosian.

On or about December 14, 2000, Kar Cheung Wong, an employee of Eurostruct, and his wife, commenced a lawsuit under various provisions of New York's Labor Law against Gagosian and 136 Wooster in Supreme Court, Kings County, under index number 48931/00. Wong alleged that on September 4, 2000, he was injured as a result of having fallen from a ladder while working at the subject premises. Gagosian, in turn, commenced a third-party action against Eurostruct and Inscorp, Eurostruct's liability insurer. In that third-party action, Gagosian alleged that it was entitled to indemnification from Eurostruct and that Eurostruct had breached its contract with Gagosian by failing to obtain insurance coverage for Gagosian. Gagosian further alleged that it was an additional insured on a policy issued by to Eurostruct by Inscorp, and that Inscorp had an obligation to provide coverage to it for Wong's claim. Eurostruct denied Gagosian's claims and also asserted cross-claims for coverage against Inscorp. Inscorp, for reasons that will be discussed, denies that it is obligated to defend and indemnify Gagosian or Eurostruct.

Eurostruct alleges that it began doing business with Treiber, an insurance broker, in the mid-1990's, for the purpose of procuring the various different types of insurance policies it required as a general contractor. It asserts that Treiber's representatives advised Eurostruct that it would identify the different types of policies Eurostruct needed, that it would ensure that coverage would remain in place so long as Eurostruct paid its premiums, and that in the event of a claim, it would protect Eurostruct's interests by providing notice to the appropriate insurer. [*3]

Eurostruct avers that it notified Treiber of the accident immediately after it occurred, that Treiber acknowledged its receipt of notification of Wong's injury, but that although it notified the State Insurance Fund (Eurostruct's worker's compensation insurer), Treiber failed to notify Inscorp. It goes on to allege that Treiber advised Eurostruct that Gagosian's insurer would "handle the claim."

On or about April 23, 2001, Inscorp, through its agent InterReco, Inc., sent Gagosian a letter (the InterReco letter) acknowledging that Gagosian was an additional insured under its policy with Eurostruct, but disclaiming coverage to Gagosian for Wong's lawsuit based upon Larry Gagosian's failure to provide it with timely notice of the claim. Inscorp furnished Eurostruct with a copy of said letter.

The claims for insurance coverage and contractual indemnification were severed from the Wong action, pursuant to an order of Justice Mark Partnow of this court, in March, 2003. Before a new index number was purchased for the severed claims, Treiber was brought into the Wong action by Gagosian and Eurostruct. Later, the claims against Treiber were consolidated with the severed action. Treiber's answer to Eurostruct included a cross-claim against Inscorp.

CONTENTIONS

Inscorp

Inscorp contends that Gagosian is not entitled to coverage because the latter was never insured by Inscorp. Through sworn representations of Patrick J. Conklin, formerly its Managing General Agent who is now Executive Vice President and Manager of Underwriting for InterReco, Inscorp asserts that Gagosian was never a named insured or additional insured thereunder. While it acknowledges that the InterReco letter states that Gagosian was an additional insured, it avers, based upon Conklin's affidavit, that "this was evidently merely an error by its author" which, in any event, did not cause Gagosian's detrimental reliance.[FN1]

Inscorp goes on to contend that even if it is an additional insured, Gagosian failed to provide it with timely notice of the occurrence. It represents that Gagosian conceded at its deposition that by late November, 2000, it was aware of Wong's accident and of his intention to commence a lawsuit naming Gagosian as a defendant, but that Inscorp's earliest notice of the accident at issue was received on March 19, 2001, when it received a fax from a wholesale broker which enclosed a communication from Treiber that had, attached to it, a letter from Gagosian's attorneys. Consequently, Inscorp argues that it is entitled to summary judgment because Gagosian failed to comply with the stated policy requirement mandating that notice of an accident be provided "as soon as practicable". [*4]

Inscorp goes on to contend that Eurostruct also failed to provide it with timely notice, asserting, based upon the deposition of its Vice President, James Tuohy, that Eurostruct was aware of the accident on the day of its occurrence, as well as of the fact that Wong had been taken to the hospital by ambulance. It alleges that under New York law, an insured having knowledge of an accident involving the injured person's removal from the scene by ambulance must immediately notify its liability insurance carrier in order to avoid the carrier's proper denial of a claim arising out of the accident on the ground of untimely notice, and that it never misled Eurostruct into believing that it was covered under the policy.

Finally, Inscorp contends that Treiber's cross-claim against it must be dismissed because it was not an agent of Inscorp's and had no contractual relationship with it, and that Eurostruct's claim for coverage against Inscorp must be dismissed on the aforementioned ground that it provided untimely notice, and that therefore any derivative claim of Treiber against Inscorp with regard to coverage must similarly be dismissed. With respect to Gagosian's alleged additional insured status, Inscorp contends that in response to a demand for the production of documents, Treiber failed to produce any such documents showing that Gagosian had been named as an additional insured or that such a request had been made. Consequently, Inscorp asserts that any claim that it is somehow responsible for Trieber's liability to Eurostruct for Treiber's failure to ensure that Gagosian was named as an additional insured, must be denied.

Eurostruct

In its cross motion wherein it seeks summary judgment on its cross-claims against Inscorp (seeking declaratory relief as well as defense and indemnification) and on its successive third-party complaint against Treiber (alleging, inter alia, negligence, malpractice and breach of contract), third-party defendant Eurostruct, through the affidavit of its president, Jimmy Tuohy, claims that he initially believed that worker's compensation would be Wong's exclusive remedy, and that as a result, he was unaware that he was required to provide notice to his insurance carriers. He goes on to assert that after Gagosian wrote to Treiber and Eurostruct demanding defense and indemnification, Eurostruct discussed this demand with Treiber, which opined that Gagosian's insurer would undertake the obligation.

Eurostruct contends that Inscorp violated Insurance Law Section 3420 (d).[FN2] Through Tuohy, it rejects Inscorp's disclaimer as to it, noting that by its language, the letter of disclaimer was addressed to, and disclaimed coverage solely as to, Gagosian, based upon its [*5]failure to promptly report the incident, and was silent as to Eurostruct. He goes on to aver that when he learned that Inscorp had denied coverage to Gagosian, he contacted a representative of Treiber, and was allegedly told that the Wong claim had never been reported to Inscorp because Treiber believed that by doing so, Eurostruct's premiums would have increased, and that instead, the claim was only reported to Eurostruct's workers compensation carrier. He asserts that Treiber was responsible for determining which policy covered a given claim, and then notifying the insurer, and contends that as a result of Treiber's negligence, Eurostruct has been forced to retain counsel both in the underlying personal injury action as well as the instant coverage litigation, at its own cost, and may be obligated to indemnify Gagosian for a potentially crippling judgment.

Finally, Eurostruct rejects Inscorp's disclaimer by contending that Inscorp's unreasonable delay in issuing its notice of disclaimer vitiated any possible claim based upon its insured's failure to provide it with timely notice of the accident.

Treiber

In seeking dismissal of all claims against it, Treiber contends that the Gagosian plaintiffs were additional insured under the Inscorp policy, but that because they failed to assert any claim or give any notice of claim against Inscorp, as purported additional insured under Eurostruct's policy with Inscorp, until March 6, 2001, approximately 6 months following the occurrence, any denial of coverage was attributable to their own conduct, and not that of Treiber. It further asserts that this issue is "largely immaterial" to Treiber because the Gagosian plaintiffs have no privity with Treiber, thus mandating dismissal of their claims against it.

Treiber's contentions in support of the Gagosian plaintiffs' status as additional insureds, are based upon two grounds. First, referring to the language contained in InterReco's above-mentioned disclaimer letter, Treiber asserts that Inscorp acknowledged that plaintiffs were additional insured under the Inscorp policy, but were denied coverage because of late notice of the underlying occurrence, late notice of the lawsuit, and failure to properly cooperate with the defense of the claims. Second, it refers to language contained in the "additional insured endorsement" of the subject insurance policy, which states that the policy covers anyone "on file with company". Contending that the endorsement is ambiguous and that it must be interpreted in favor of coverage, Treiber argues that the policy's terms that define "who is an insured", as amended to include "the person or organization shown . . . with respect to liability arising out of . . . ongoing operations performed for that insured", as well as "[a]ny person . . . or any organization while acting as your real estate manager" must be read to include the Gagosian plaintiffs. In support, Treiber proffers the affidavit of Chrishna Jennarine to demonstrate that "136 Wooster Corp. c/o Gagosian Gallery" was added to the policy by a formal certificate pursuant to Treiber's request for such coverage as sent to American Marketing Center, Incorp's producer, on May 21, 2000, that approval was allegedly given by Jim Courtney on behalf of American Marketing and Inscorp on June 5, 2000, and the certificate was never rejected. Alternatively, it avers that Gagosian Gallery Inc. would [*6]also be an additional insured by virtue of its role as a real estate manager for 136 Wooster Corp., hence the denomination on the contract and the certificate of "136 Wooster Corp. c/o Gagosian Gallery."

However, Treiber contends that it owes no legal duty to the Gagosian plaintiffs, because under well-settled law in New York, an insurance broker's duty runs only to its client (Eurostruct), and not to any potential additional insureds.

In seeking summary judgment dismissing Eurostruct's cross-claims against it, Treiber, mirroring Eurostruct's argument, contends that Inscorp's disclaimer letter cannot be enforced against Eurostruct because its wording clearly applied to Gagosian, and is not effective as to Eurostruct, a separate and distinct insured.

The Gagosian plaintiffs

In that branch of its cross motion wherein it seeks an order granting partial conditional summary judgment against Eurostruct concerning common law and contractual indemnification, Gagosian refers to that provision of the parties' agreement dated August 19, 1999, which incorporated by reference General Conditions of the Contract for Constructions' (AIA Document A201-1997). Article 3.18 of same provides that To the fullest extent permitted by law, . . . the Contractor shall indemnify and hold harmless the Owner . . . from and against claims, damages, losses and expenses, including but notlimited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim . . . is attributable to bodily injury, sickness, disease or death . . . but only to the extent caused by the negligent acts or omissions of the Contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim . . . is caused by a party indemnified hereunder.

Plaintiffs, noting that there has not yet been a determination of the degree of liability, if any, with respect to any of the parties, request an order of conditional summary judgment for those damages caused by Eurostruct's own statutory and/or common law negligence.

With respect to its coverage claims, Gagosian further proffers a copy of a Certificate of Insurance, issued by Treiber on or about March 6, 2000, indicating that Inscorp had issued a policy of general liability insurance to Eurostruct, and further stating that the " certificate holder' (noted as 136 Wooster Corp. c/o Gagosian Gallery) and Twenty Four Eleven LLC are added as Additional Insured with respect to General & Umbrella Liability," effective for the period of November 26, 1999 through November 26, 2000. In addition, Gagosian provides a copy of Treiber's request, dated May 23, 2000, to have said entities added as additional insured, together with a returned written confirmation of binder of coverage. [*7]

Gagosian goes on to note that after Wong commenced his personal injury action on or about December 8, 2000, predecessor counsel for plaintiff attempted to place Inscorp on notice and to tender the defense. However, as evidenced by correspondence annexed as exhibits to Gagosian's papers, it appears that the initial claim was erroneously submitted to an incorrect insurance company, apparently due to its bearing a name similar to that of one of Inscorp's subsidiaries. Thereafter, a tender of the defense was submitted to Inscorp, which, according to plaintiffs, initially declined coverage based upon a claim of late notice, but, referring to Patrick Conklin's affidavit of 2003, subsequently changed its position and declined coverage based upon the fact that the "Owner" was not named as an additional insured on the subject policy.

However, with respect to the latter issue, Gagosian, referring to Conklin's deposition testimony, contends that Conklin admitted the existence of a "production agreement" that Inscorp had with American Marketing which resulted in the production of said policy. Gagosian also contends that since the policy endorsement indicated that the parties "on file" were covered, and because, according to Conklin's testimony, Inscorp rarely issued a specific endorsement actually typing in the names of additional insured and instead relied on the Certificate of Insurance contained in its file to determine who had been added as additional insured, Gagosian is a covered entity.

Finally, plaintiffs dispute Inscorp's proffered explanation in support of its assertion that the "mistakenly" drafted disclaimer letter was the product of an inexperienced employee's error, contending that such claim is without merit and violates well-settled principles of vicarious liability. It thus contends that based upon the existence of American Marketing's production agreement and that entity's apparent authority to bind coverage on behalf of Inscorp, Inscorp shold be estopped from claiming that it did not have a record of Gagosian, as owners, being added to the policy as additional insureds.

Opposition and replies

In opposition to the cross motions, Inscorp contends that: (1) Eurostruct always knew that its claim was denied upon its receipt of the April 23, 2001 disclaimer letter that was addressed to Gagosian Gallery and Larry Gagosian; (2) plaintiffs' assertion that they were insured under the policy by virtue of faxed correspondence and certificate that was forwarded to American Marketing Center, Inc. (AMC) is incorrect, because as a "producer", AMC was only a broker, not an agent, of Inscorp, and thus lacked any power to bind Inscorp; and (3) plaintiffs were never misled into believing that Inscorp would provide coverage to them.

Treiber, in opposition: (1) predicts that Eurostruct will prevail on its motion for coverage against Inscorp, and thus contends that Eurostruct fails to allege that it has suffered any damages even if there was a breach on Treiber's part; (2) agrees that its claims are intertwined with those of Eurostruct, and contends that controlling authority in New York upholds the right of an alleged non-producing broker to sue the insurer; and (3) noting that plaintiffs have not sought any relief as to Treiber nor submitted any opposition to its motion, contends that their complaint must be dismissed. [*8]

Eurostruct asserts that Treiber's motion against it should be denied because: (1) it fails to specify which claims alleged by Eurostruct Treiber seeks to have dismissed[FN3]; (2) discovery is not yet complete and therefore Treiber's motion is premature; and (3) there are factual issues to be determined, thus precluding summary judgment. It seeks denial of Treiber's cross motion, alleging that Treiber fails to address the merits of Eurostruct's claims against it, and it also asserts that the Gagosian plaintiffs' cross motion on the issue of contractual and common law indemnification must be denied because of the existence of factual issues, and refers to Tuohy's deposition testimony to support its contention that the fact that the construction job involved three phases covered by different contracts demonstrates that a factual issue exists as to whether the contract referred to by plaintiffs in their papers was applicable to the phase that was underway when Wong was injured. It goes on to assert that because there is no evidence in the record that Eurostruct was negligent, there can be no award of conditional summary judgment on the issue of common law indemnification.

In reply, Treiber, addressing Eurostruct's contentions, asserts: (1) its motion papers clearly seek dismissal of "all claims and cross-claims against [it]"; (2) Eurostruct raises immaterial questions of fact that will not be addressed by further discovery, in that it is undisputed that Inscorp never specifically denied coverage to Eurostruct but then invalidly attempted to raise defenses to coverage in its answer, thus rendering Trieber's role as to Eurostruct irrelevant; (3) Eurostruct's argument that there are myriad additional fact issues fails to identify said issues; (4) Eurostruct's operative allegation against Treiber, namely, that Eurostruct has no coverage under the Inscorp policy, has no support and in fact, Eurostruct has coverage thereunder; (5) since Gagosian has its own insurance, it has no claim against Eurostruct; and (6) Tuohy's claim that Treiber owed Eurostruct a fiduciary duty is spurious and unsupported.

Eurostruct, in reply to Treiber, reiterates its allegation that Treiber represented to it "as it does to all its clients" that it would notify all insurers potentially providing coverage to any claim that was reported to Treiber, and that despite having received such notice, Treiber does not deny having made such representations. In reply to Inscorp's contentions, Eurostruct argues that Inscorp, in failing to issue a disclaimer to Eurostruct, violated Insurance Law § 3420 (d), and that even if its disclaimer as to Gagosian was deemed effective as to Eurostruct, it was, by reason of the 30 day delay, unreasonable as a matter of law. Additionally, it rejects, as a question for the trier of fact, Eurostruct's claim that its notice of the Wong claim was unreasonable as a matter of law, and reiterates, based upon the documentary evidence, that the Gagosian plaintiffs were covered as additional insureds.

DISCUSSION[*9]

Treiber's dismissal motion must be denied

In a motion to dismiss for failure to state a cause of action, the court must accept as true the facts alleged in the pleading and accord plaintiff the benefit of every possible inference (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002]). If factual allegations are discerned which manifest any cause of action cognizable at law, the motion to dismiss must be denied (Maldonado v Olympia Mechanical Piping & Heating Corp., 8 AD3d 348 [2004]).

Here, Treiber's arguments address the merits of plaintiffs' and cross-claimants' actions and do not show that the respective pleadings are insufficient in any way. Indeed, accepting as true the allegations contained in the pleadings, they do not fail to state a cause of action upon which relief can be granted. Thus, that branch of Treiber's motion brought pursuant to CPLR 3211 must be denied.

Inscorp's disclaimer is ineffective as to both Gagosian and Eurostruct

The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought (CPLR 3212; Zuckerman v City of New York, 49 NY2d 557 [1980]). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493 [1989]; see also, Zuckerman, 49 NY2d at 562). Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]).

An insurance carrier must "promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated" (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]; see also Prudential Property & Casualty Insurance v Persaud, 256 AD2d 502 [1998]). Moreover, an insurance carrier must give timely notice of the disclaimer "as soon as is reasonably possible" after it first learns of the accident or grounds for disclaimer of liability or denial of coverage (Insurance Law § 3420 [d]; Hartford Ins. Co. v County of Nassau, 46 NY2d 1028 [1979]; Matter of Interboro Mut. Indem. Ins. Co. v Rivas, 205 AD2d 536 [1994]; see also New York Mut. Fire Ins. v Majid, 5 AD3d 447 [2004]). "This rule applies even if the insured or the injured party has in the first instance . . . failed to provide the insurance carrier with timely notice of the accident or claim." (Prudential Property & Casualty Insurance, 256 AD2d at 504; see also Wasserheit v New York Central Mut. Fire Ins. Co., 271 AD2d 439 [2000]).

Most often the question of whether an insurer has given notice as soon as reasonably possible will be a question of fact that depends upon surrounding circumstances (see Mount Vernon Housing Authority v Public Service Mut. Ins. Co., 267 AD2d 285 [1999]); however, it is clear that it is the responsibility of the insurer to provide an explanation for any delay [*10](First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64 [2003]). Nevertheless, where an insurer provides no excuse or an inadequate reason for an untimely disclaimer, courts will find the delay unreasonable as a matter of law (id.; see also Progressive Northeastern Ins. Co. v American Ins. Co., 2001 WL 959183 [SDNY 2001]). Similarly, although investigations are encouraged to prevent insurers from disclaiming without first gathering sufficient information, where the sole ground upon which the disclaimer is based is obvious from the face of the notice of claim and accompanying complaint, a delay of even 30 days has been held to be unreasonable (see 16th Street Tenants Corp. v Pub. Service Mut. Ins. Co., 290 AD2d 278 [2002]).

Inscorp does not dispute that it received notice of the incident with respect to Gagosian on March 19, 2001. In its letter to Gagosian[FN4] dated April 23, 2001, Inscorp both acknowledged Gagosian's status as an additional insured "[with the] same duties and obligations as an insured", and cited Larry Gagosian's failure to promptly report the incident as the sole basis for disclaiming its obligations under the policy. In regard to the notice issue, the facts in the case at bar are virtually indistinguishable from those in The Insurance Corp. of New York v Empire Construction Corp. of Long Island (5 Misc 3d 1022[A] [2004]), where Inscorp's unexcused 2 ½-month delay in issuing a notice of disclaimer which alleged its insured's failure to immediately apprise it of the incident, was held untimely and ineffective as a matter of law ("[a]lthough the basis for the disclaimer, late notice, should have been evident from the face of the notice it received from the injured party, Inscorp offered no excuse for its delay"). Accordingly, the court finds that Inscorp's letter disclaiming coverage, which followed its receipt of notice by approximately 35 days, was ineffective as to Gagosian under Insurance Law § 3420 (d) (see 16th Street Tenants Corp., 290 AD2d at 279), and it is unnecessary to review Inscorp's contentions alleging that Gagosian's own delinquency provided Inscorp with a lawful basis for disclaiming coverage.[FN5] [*11]

Inscorp's disclaimer letter was also ineffective as to Eurostruct, which, as noted, was silent as to it. "An insurer's justification for denying coverage is strictly limited to the ground stated in the notice of disclaimer" (Shell v Fireman's Fund Ins. Co., 17 AD3d 444, 446 [2005]). [I]n order for a disclaimer letter to be valid against [a] . . . party, the notice of disclaimer must specifically advise the claimant that his or her notice of claim was untimely" (State Farm Mut. Auto Ins. Co. v Cooper, 303 AD2d 414 [2003]). Indeed, in an analagous situation, courts have recognized that "an injured third party may seek recovery from an insured's carrier despite the failure of the insured to provide timely notice of the accident" (Gen. Acc. Ins. Group v Cirucci, 46 NY2d 862 [1979]).

Here, it is indisputable that Inscorp's letter failed to advise Eurostruct in accordance with said legal requirement (see Insurance Law § 3420 [d]; Hazen v Otsego Mut. Ins. Co., 286 AD2d 708 [2001] [where defendant's disclaimer of coverage was based only on its insured's failure to notify it of the claim, it was not effective against plaintiffs, the injured parties, and defendant was estopped from raising plaintiffs' allegedly late notice as a ground for disclaiming coverage]; see also Shell, 17 AD2d at 446; Vacca v State Farm Ins. Co., 15 AD3d 473 [2005] [defendant's disclaimer based upon inaction of its own insureds did not affect independent rights of plaintiff, who was attempting to recover the amount of an unsatisfied default judgment pursuant to Insurance Law § § 3420 (a) (2) and (b) (1)]). Thus, even if Inscorp had expeditiously notified Eurostruct for the purpose of disclaiming its obligation under the policy, its failure to set forth therein any grounds as to Eurostruct mandates its vacature. Accordingly, the court, finding no need for any further discovery on the issues presented herein, (1) grants that branch of plaintiffs' cross motion for summary judgment wherein they seek a declaration that they are additional insureds on the Inscorp policy, and (2) grants Eurostruct's cross motion to the extent of awarding summary judgment on its cross claim for defense and indemnification. Since Eurostruct fails to demonstrate the existence of any statute, court rule or agreement between the parties which authorizes an award of attorneys' fees, that branch of its motion seeking such relief is denied (see Silberstein v First Wall Street Capital Corp., 128 AD2d 516 [1987]; Rollin v Grand Store Fixture Co., 231 App. Div. 47, 50 [1930]; Rosenberg v Frankel, 123 App. Div. 700 [1908]).

In view of the foregoing determinations, which render moot any claims asserted by plaintiffs and Eurostruct against Treiber, the latter is entitled to summary judgment dismissing Gagosian's complaint, and Eurostruct's successive third-party complaint, against it[FN6]. Concomitantly, the court denies those branches of Inscorp's cross motion insofar as they [*12]seek dismissal of the complaint and Eurostruct's cross-claims, and grants, as moot, that branch of its motion for dismissal of Treiber's cross-claims.

Finally, Gagosian's cross motion for conditional summary judgment on the issues of contractual and common law indemnification must be denied based upon the existence of factual issues. As pointed out by Eurostruct in opposition to the cross motion, Tuohy testified at his deposition that the construction job on Gagosian's premises consisted of three phases, each of which was the subject of its own contract, and the record is devoid of any evidence that the contract annexed to Gagosian's papers was the document applicable to the phase underway at the time Wong's accident occurred (see Williams v 461 Eighth Avenue Assocs., 277 AD2d 181 [2000]). Similarly, factual questions exist as to whether Gagosian is entitled to indemnification under common law, since Eurostruct's liability as to Wong has not yet been determined (see Johnson City Cent. School Dist. v Fidelity & Deposit Co. of Md., 272 AD2d 818, 822 [2000] ["key element of common-law indemnification is the duty which arises from the principle that every person is accountable for the consequences of his or her own negligence"]; Sutherland v Hallen Constr. Co., 183 AD2d 887, 890 [1992] [contribution claim lies where the alleged wrongdoer breaches a duty of care owed either to the injured party or to the codefendant]). Accordingly, Gagosian's motion for summary judgment in this regard is denied without prejudice.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:In support of said contention, Inscorp provides an affidavit of John Purpura, a former claims manager of InterReco, Inc. who supervised Diana Cesaria, the author of the letter. He alleges that at the time she issued said letter, she was a new employee, and her statement therein that Gagosian was an additional insured was an error on her part.

Footnote 2:Insurance Law Section 3420 (d) provides: "[i]f under a liability policy delivered or issued for delivery in this state, an insurer shall disclaim liability or deny coverage for death or bodily injury arising out of a motor vehicle accident or any other type of accident occurring within this state, it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant."

Footnote 3:Eurostruct alleges that although Treiber's notice states that it seeks to have " the complaint and all claims and cross-claims" dismissed, it does not refer to Eurostruct's Successive Third Party Complaint, but in its memorandum of law, Treiber seeks to have the claims asserted by Eurostruct in the Successive Third-Party Complaint dismissed.

Footnote 4:Inscorp's disclaimer letter was sent to "Gagosian Gallery" to the attention of Larry Gagosian.

Footnote 5:The court is unpersuaded by Inscorp's argument that the Gagosian plaintiffs were additional insureds only by virtue of a mistake made by an inexperienced employee. It is clear from the affidavit of Chrishna Jennarine, an employee of Treiber who, as a customer service representative, assisted Anthony J. Biviano, a former employee, in servicing the Eurostruct file in 2000, that requests for blanket additional insured coverage were faxed to American Marketing Centers, Inc., (AMC), an intermediary for the account. A certificate naming "136 Wooster Corp. c/o Gagosian Gallery" (as the property owner) and "Twenty-Four Eleven LLC" dated March 27, 2000 (predating Wong's accident) was among those faxed, and receipt was acknowledged. Jennarine also states that Treiber was not permitted to contact Inscorp directly, but was required to correspond through American Marketing Center, its appointed producer. In view of the Gagosian plaintiffs' unrefuted status as being "on file" with Inscorp, the latter's challenge to the transaction, based upon a purported lack of agency relationship with AMC , is unconvincing. Finally, the express language of the policy provides coverage for the executive officers and directors of an "organization".

Footnote 6:Alternatively, the Court would agree with Treiber that it owed no legal duty to the Gagosian plaintiffs, none of whom were in contractual privity with it (see Arredondo v City of New York, 6 AD3d 328, 329 [2004] ["(i)t is well settled that the duty of an insurance broker runs to its customers and not to any additional insured, since there is no privity of contract for the imposition of liability"]; see also Federal Ins. Co. v Spectrum Ins. Brokerage Servs., 304 AD2d 316, 317 [2003]; Glynn v United House of Prayer For All People, 292 AD2d 319, 323 [2002]).