Poveromo v BH Constr. Group, Inc.

[*1] Poveromo v BH Constr. Group, Inc. 2009 NY Slip Op 52400(U) [25 Misc 3d 1233(A)] Decided on November 30, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2009
Supreme Court, Kings County

Anthony Poveromo, Plaintiff,

against

BH Construction Group, Inc., FISCHEL ROSENBERG, SUSAN ROSENBERG and 46 ST. FOOD CENTER. INC., Defendants.



Susan Rosenberg Third-Party Plaintiff,

against

Tower Insurance Company of New York, Third-Party Defendant.



11228/07



For Defendant/Third-Party Plaintiff:

Frederick D. Schmidt, Jr.

Law Office of James J. Toomey

485 Lexington Avenue 7th Fl

New York, New York 10017

917-778-6600

For Third Party Defendant:

Jill W. Laurence

Law Office of Steven G. Fauth, LLC

40 Wall Street, 28th Fl

New York, New York 10017

212-400-7134

Francois A. Rivera, J.

By notice of motion filed on May 19, 2009, under motion sequence number five, third-party defendant Tower Insurance Company of New York (hereinafter Tower) seeks an order pursuant to CPLR § 3212 granting summary judgment in its favor on liability and dismissing Susan Rosenberg's (hereinafter Rosenberg) third-party complaint on the basis that she is not a party to the insurance agreement between Tower and 46 ST. FOOD CENTER, INC. (hereinafter 46 ST). Third-party plaintiff, Rosenberg opposes the motion.

BACKGROUND

On April 3, 2007, Anthony Poveromo, (hereinafter Poveromo) commenced the first party personal injury action bearing index number 11228/07 for damages he allegedly sustained on September 2, 2006 when a construction fence fell on him in front of a building owned by Rosenberg.

On May 27, 2008, Rosenberg commenced the instant third-party action against Tower seeking insurance coverage for the claims made against her by Poveromo under a policy issued by Tower to 46 ST.

MOTION PAPERS

Tower's motion papers consists of an affirmation of counsel and seven annexed exhibits. Exhibit A is Poveromo's supplemental summons bearing index number 11228/07 and dated November 2, 2007. Exhibit B is Poveromo's amended verified complaint and 46 ST's verified answer. Exhibit C is Rosenberg's amended verified answer to Poveromo's amended verified complaint.Exhibit D is Rosenberg's notice to implead Tower as a third party defendant pursuant to CPLR § 3402(b). Exhibit E is Tower's answer to the third-party complaint dated July 2, 2008 and Tower's disclosure demands. Separately labeled is an affidavit of James Dermit, Tower's vice-president, and a certified copy of the insurance policy Tower issued to 46 ST which Dermit refers to and attaches as exhibit A to his affidavit.

Third-party plaintiff Rosenberg opposes Tower's motion with an affirmation of counsel and four annexed exhibits. There is no exhibit A. Exhibit B is her amended verified answer to Poveromo's first party complaint. Exhibit C is her affidavit which refers to an annexed copy of a lease. Exhibit D is a copy of a lease. Exhibit E is an excerpt of an insurance form.

Tower replies to Rosenberg's opposition papers with an affirmation of counsel and an annexed disclaimer letter it issued to 46 ST dated September 19, 2007.

LAW AND APPLICATION

On a motion for summary judgment, the movant must establish his or her cause of action or defense sufficient to warrant a court to direct judgment in his or her favor as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). If the movant meets this burden, the party opposing the motion must then produce proof in admissible form sufficient to necessitate a trial as to material issues of fact (Laecca v. New York [*2]University, 7 AD3d 415 [1st Dept., 2004]). Furthermore, to grant a motion for summary judgment, it must clearly appear that no material issue of fact is presented. The burden upon the court when deciding this type of motion is not to resolve issues of fact or credibility, but rather to determine whether indeed any such issue of fact exist (Barr v. County of Albany, 50 NY2d [1960]).

Rosenberg's third-party complaint claims that Tower issued insurance policy number CPP2316614 to 46 ST; that the policy covers the claims brought by Poveromo against her and that she is an insured or additional insured under that policy. Tower contends that Rosenberg's third-party complaint must be dismissed because she is not a named or additional insured under the aforementioned policy that it issued to 46 ST.

"[C]ourts bear the responsibility of determining the rights or obligations of parties under insurance contracts based on the specific language of the policies"(Jahier v. Liberty Mut. Group, 64 AD3d 683, 684 [2nd Dept., 2009]) and unambiguous provisions must be given their plain and ordinary meaning (Pepper v. Allstate Ins. Co., Inc., 20 AD3d 633, 634 [3rd Dept., 2005]; citing (Sanabria v. American Home Assur. Co., 68 NY2d 866 [1986]).

"Coverage extends only to named entities and/or individuals defined as insured parties under the relevant terms of the policy (Catholic Health Services of Long Island, Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa. ,46 AD3d 590 [2nd Dept. 2007]; citing Sanabria v. American Home Assur. Co., 68 NY2d 866, 868 [1986]).

"[W]here the insurance contract does not name, describe, or otherwise refer to the entity or individual seeking the benefit thereof as an insured, there is no obligation to defend or indemnify" (Catholic Health Services of Long Island, Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa. ,46 AD3d 590 [2nd Dept. 2007]); citing State of New York v. Liberty Mut. Ins., Co., 188 AD3d 1084 [4th Dept. 2005]).

It is undisputed that the insurance policy in question is annexed in Tower's motion papers as exhibit A to the affidavit of James Dermit, Tower's vice-president. A review of the policy reveals that Rosenberg is not mentioned anywhere in the four corners of the insurance contract. Tower has shown that the insurance contract does not name, describe, or otherwise refer to Rosenberg. Tower has, therefore, met its prima facie burden to dismiss Rosenberg's third-party complaint.

In order for Rosenberg to defeat the motion, she must produce proof in admissible form sufficient to necessitate a trial as to material issues of fact (Barr v. County of Albany, 50 NY2d [1960]). Rosenberg's affidavit attest to her ownership of the premise located at 4602 Fort Hamilton Parkway, Brooklyn, New York and of her lease of the street level and basement of said premises to Moshe Shie Fried during the period in question when Poveromo was injured. She avers that Moishe Shie Fried is the owner of 46 ST and 46 ST's lease with Rosenberg compel 46 ST to obtain insurance coverage during the lease term which covers bodily injuries claims and which names Rosenberg as an additional insured. The court will assume arguendo that Mosihe Shie Fried is 46 ST for purposes of analyzing Rosenberg's argument. Rosenberg contends that the insurance [*3]policy and the lease terms read together obligate Tower to cover her as an additional insured against Poveromo's claim.

While, Rosenberg may have a viable breach of contract claim against 46 ST, its alleged breach of the lease agreement does not create an obligation by Tower to insure Rosenberg. The plain language of Tower's insurance contract with 46 ST does not mention Rosenberg at all and does not contain language which demonstrates an intent to benefit her as a third party. A party asserting rights as a third-party beneficiary of a contract must establish: (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost (State of California Public Employees' Retirement System v. Shearman & Sterling, 95 NY2d 427 [2000]). Rosenberg does not and cannot point to any language of the insurance contract between Tower and 46 ST which demonstrates their intention to benefit her. Rosenberg's reading of Moshie Shie Fried's lease provisions to mandate an obligation by Tower to treat her as an insured is unsupported. Rather it obligates Tower to provide coverage to 46 ST and includes coverage to 46 ST for liability that 46 ST assumes in a contract. The lease provision in which 46 ST Fried agrees to indemnify Rosenberg for bodily injury is an assumption of liability by 46 ST. As such, it is a risk which Tower must cover but only as to its insured. There is nothing in the insurance contract which gives Rosenberg the direct benefit of insurance coverage as an insured, additional insured or third party beneficiary of the contract. Tower's liability is to 46 ST alone. Rosenberg's opposition papers do not raise a material issue of fact requiring a trial.

Tower's motion for summary judgment in its favor on liability and dismissing the third part complaint is granted.

The foregoing constitutes the decision and order of this court.

 1;x

J.S.C.