Josma v Interboro Ins. Co.
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Josma v Interboro Ins. Co. 2011 NY Slip Op 32578(U) September 27, 2011 Supreme Court, Nassau County Docket Number: 3575/11 Judge: Anthony L. Parga Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT - NEW YORK STATE- NASSAU COUNTY PRESENT: HON. ANTHONY L. PARGA JUSTICE JP i\Fllr 8 Mi\R.E G. JOSMi\ JPlaintiff INDEX NO. 3575/11 MOTION Di\TE: 08/05/11 SEQUENCE NO. 001 -against- INTEFlOFlO INSUAANCE CO. , NUBIi\ , INC. KIGSTON INSUAANCE CO. , and FIFlST CHOICE COVEAAGES Defendants. Notice of Motion , i\ffs. & Exs............................................................... ...... i\ffirmation in Opposition & Exs.................. .".......................... Memorandum of Law in Opposition.......................................................................... .. Fleply i\ffirmation......................................................................................... ................ Fleply i\ffirmation................ .......................... .................... .,.. Upon the foregoing papers , the motion by defendant Kingston Insurance Co. for an order dismissing the plaintiffs complaint and all cross- claims as against said defendant is granted to the extent directed below. lrhe following facts are taken from pleadings and submitted papers and do not constitute findings of fact by this Court. lrhis is an action in which the plaintiff seeks insurance coverage under plaintiffs firstpar homeowner s policy issued by defendant Interboro Insurance Co. (hereinafter " Interboro for propert damage allegedly caused to plaintiff s home and personal property; damages from defendant Nubia , Inc. (hereinafter "Nubia ) due to Nubia s alleged breach of contract and defective construction at plaintiff s premises; and insurance coverage directly under the third par general liabilty policy issued by moving defendant Kingstone Insurance Company s/ha Kingston Insurance Company (hereinafter " Kingstone ) to Nubia (herinafter referred to as the Kingstone policy Plaintiff alleges that she entered into a contract on or about June 9 , 2010 with Nubia to [* 2] perform work , labor , and services , and to furnish materials , in connection with the addition of a second story onto plaintiff s premises located in Uniondale , New York. Nubia allegedly began work shortly thereafter , which included removal of the house s roof and the placing of a tar over the open portions ofthe roof at the end of each work day. On or about July 13 2010 , a wind and rainstorm allegedly caused portions of the tar to be removed from plaintiff s roof and exposed the openings in the roofto the elements. JPlaintiff alleges that because Nubia failed to properly secure the tar over the open portions of the house s roof, rain from the storm entered the plaintiffs house and caused damage to the interior ofthe house , as well as to personal property. Nubia was insured by a Commercial General Liability insurance policy through Kingstone at the time of this incident. The policy contained an endorsement which amended the definition of " insured" in the General Liability Coverage , but limited such coverage to " vicarious liability" of the additional insured. lrhe policy amended the definition of " insured" to include any person(s) or organizations(s) for whom you are performing operations under contract and for whom you are contractually obligated to furnish additional coverage " but limited same by stating that " this endorsement covers only liability arising out of your work involving ongoing operations performed for the additional insured(s) and is limited to vicarious liability arising from the hazards covered by this policy. Nubia notified Kingstone that it was seeking coverage under the Kingstone policy for plaintiffs claim against Nubia for the damage to plaintiffs home and property and Kingstone disclaimed coverage based upon the exclusion in the Kingstone policy for "property damage or products/completed operations liability arising out of your work which involves the removal and/or replacement of roof materials, " among other items. In addition , plaintiff sought coverage through her homeowner s policy with Interboro , but Interboro denied coverage because the premises were not plaintiffs primary residence and were not occupied by the homeowner contrar to the information contained in plaintiff s insurance application to Interboro , which was allegedly prepared and submitted by defendant First Choice Coverages. With respect to moving defendant Kingstone , plaintiff s complaint seeks a declaration that Kingstone is required to indemnify Nubia for plaintiffs claims against Nubia for the alleged propert damage to plaintiffs home and personal property, as well as a declaration that plaintiff is entitled to additional insured coverage under the Kingstone policy for the alleged property damage to plaintiffs home and personal property. Kingstone moves for dismissal arguing, inter alia that this is an improper direct action against Kingstone by a part who lacks standing to assert a direct action against Kingstone , and that the documentary evidence forecloses the plaintiffs claims against Kingstone as a matter of law. Kingstone also argues that Interboro [* 3] lacks standing for its cross- claim against Kingstone. Insurance Law 93420 grants an injured plaintiff the right to sue a torfeasor s insurance company to satisfy a judgment obtained against the tortfeasor. i\judgment is a statutory condition precedent to a direct suit against the torfeasor Y.3d 350 s insurer. (Lang v. Hanover Ins. Co. , 3 820 N. E.2d 855 (2004)). Insurance Law 93420(b)(1) grants an injured pary a right to sue the tortfeasor s insurance , but the injured pary must first obtain a judgment against the tortfeasor , serve the insurance company with a copy of the judgment and await payment for thirty days. (Id. Compliance with these requirements is a condition precedent to a direct action (Id. lrhe statutory right created in Insurance Law 93420 arises only after a plaintiff has obtained a judgment in the underlying action. (I d. lrhe plaintiff herein against the insurance company. has not obtained a judgment against Kingstone s insured, Nubia , and may not maintain a direct action against Kingstone seeking damages for her propert damage or seeking a declaration that Kingstone is required to cover the plaintiff s claim against Nubia. (Id. (holding that a declaratory judgment action challenging the tortfeasor s insurer s disclaimer of coverage was properly dismissed where it was brought by the injured plaintiff while his underlying action against the tortfeasor was pending)). In addition , beneficiar herein , contrar to plaintiffs contentions , plaintiff is not an intended third par as she is not a named insured , nor is she referred to or described in the Kingstone policy as an intended beneficiary. In order for a third par to enforce a policy of insurance , it must be demonstrated that the paries intended to insure the interest of a third par (Stainless, Inc. v. Employers Fires Insura'!ce Co. 69 i\. st Dept. 1979)). Unless it is established that there is an intention to benefit 418 N. Y.S. 2d 76 (1 who seeks to recover on the policy. the third pary, the third pary wil be held to be a mere incidental beneficiar, with no f\ incidental beneficiar is a third par (Id. whom although he or she may not be the promisee or the one to whom performance is to be rendered enforceable rights under the contract. may neverteless derive a benefit from the performance of the contract. (Cole v. Metropolitan Life Ins. Co. 273 AD.2d 832 , 708 N. Y.S.2d 789 (4 Dept. 2000)). lrhe terms contained in the contract must clearly evince an intention to benefit the third person who seeks the protection of the contractual provisions. Y.S.2d 76 (1 st Dept. 1979)). (Stainless, Inc. i\ v. Employers Fires Insurance Co. 69 i\. 2d 27 , 418 third party seeking to enforce the insurance policy must be able to show from the four corners of the contract that the paries to the insurance policy clearly and specifically intended to insure the specific interest of that third party. AD.2d 315 534 N. Y.S. 2d 983 (1 st Dept. 1988); Wrecking Co. 66 N. Y.2d38 , 485 N. E.2d (Alicea City of NY , 145 Interstate Further , when circumstances apar from Fourth Ocean Putnam Corp. 208 (1985)). v. v. [* 4] the policy language are considered to determine the paries ' intent to benefit a third pary, such intent wil be found only where it is established that no one other than the alleged beneficiary could recover under the contract. Y.2d 38 , (Fourth Ocean Putnam Corp. v. Interstate Wrecking Co. , 66 485 N. E.2d 208 (1985)). lrhere is no such evidence herein , and there is no evidence that plaintiff is any more than an incidental beneficiary of the policy at issue. The Court notes that the portion of the policy which the plaintiff relies upon to demonstrate that plaintiff was an intended beneficiary of the policy, " Coverage 0" at page 000009 of the Kingstone policy, applies to fire damage which was not the source of the alleged damage in the instant action. lrhe portion of the policy is entitled " Coverage 0 - Fire Legal Coverage - Fleal Propert. i\dditionally, while plaintiff may have a claim as an i\dditional Insured under the policy, as plaintiff concedes , any additional insured coverage under the Kingstone policy is limited to plaintiffs vicarious liabilty in suits against plaintiff for damage to a third par' s propert arising out of Nubia s work for plaintiff. lrhe Construction i\greement between the plaintiff and Nubia states that " the contractor represents that workmen s compensation and public liability insurance are caried by it and its subcontractors and are applicable to work performed under this contract." lrhe contract fuher states that Nubia agrees to "maintain worker s compensation insurance and liability insurance coverage for Contractor and Owner. i\s such , Nubia was contractually obligated under the terms of the Construction i\greement to provide additional insured coverage to plaintiff. Under the terms of the Kingstone policy, however , such additional insured coverage was limited to " liability arising out of (Nubia s) work involving ongoing operations performed for the additional insured" and " is limited to vicarious liability arising from the hazards covered by this policy. " i\s such, the plaintiff does have standing to bring the within action against , Kingstone , only with respect to a request for a declaration regarding coverage for plaintiff s vicarious liability in suits against plaintiff for damage to a third par' s propert arising out of Nubia s work for plaintiff. i\s such , plaintiff is not bared from seeking a declaration regarding action (bearing Nassau County District Court index number 45758110), commenced against plaintiff for propert damage to her renter , Salguero s personal coverage for the Salguero v. Josma propert arising out of Nubia s work at the plaintiffs premises. Flegardless of plaintiff s standing as an i\dditional Insured , all of plaintiff s claims are bared by the policy exclusion for roofing operations. lrhe Kingstone policy states that Insurance provided by Coverage L and Coverage N does not apply to bodily injur and/or products/completed operations arising out of (Nubia s) work which involves the removal and/or replacement of roof materials. " Plaintiff alleges in her complaint that " propert damage or order to add a second story to the Premises , the Defendant Nubia removed a protion of the roof ); [* 5] of the house " and that ' before leaving each at the end of each day, the Defendant Nubia placed a tar over the opening in the roof. JPlaintiff furher alleges that on July 13 , 2010 , there were wind gusts and rain that " blew a portion of the tarp " and created an opening in the roof, allowing rain to enter , causing " substantial damage to the interior structure of the house and the plaintiffs personal propert. " Further , the plaintiff in the Salguero action also alleges that the roof was removed , plaintiff failed to take adequate precautions , and rain fell through the top of the building that had been left open and exposed , causing damage to her propert. f\s such , it is evident that the damage claimed herein arose out of Nubia ' s " removal and/or replacement of roof materials " and it is therefore excluded from coverage. f\s the terms of exclusion are unambiguous , the exclusion herein is a bar to coverage. (See, Grove Hil Associates v. Colonial Indemnity Ins. Co. 24 AD. 3d 607 806 N. Y.S.2d 691 (2d Dept. 2005)(exclusion in roofer policy for " liability arising out of your work which involves the removal and/or replacement of roof materials " bared coverage for fire damage to building due to propane torches used in course of replacing roof); v. Covenant Ins. Co. Jonathan Construction Corp. 237 A.D.2d 243 (2d Dept. 1997)( damage which occured when the defendant peeled away the waterproof covering of the plaintiffs roof to install roof trusses was considered a " roofing operation " within meaning of insurance policy exclusion which bared liability for certain tyes of propert damage arising out of the insured' s " roofing operations f\. 3d Kay Bee Builders, Inc. Merchant' s Mutual Ins. Co. 631 , 781 N. Y.S. 2d 692 (2d Dept. 2004)(policy exclusions are to be read seriatim and , if v. anyone exclusion applies , there is no coverage since no one exlcusion can be regarded as inconsistent with another)). f\s the activities which are alleged to have caused plaintiff s damages and the damages to plaintiffs renter , Salguero , arose from defendant Nubia s removal of a portion of the roof, the exclusion in the policy applies to bar coverage. Where documentar evidence definitively contradicts the plaintiffs factual allegations and conclusively dismissal is waranted. (See, Berrardino v. disposes of plaintiffs claims Ochlan 2 AD.3d 556 , 770 N. Y.S.2d 75 (2d Dept. 2003); CJPLFl93211(a)(1)). Lastly, defendant Interboro does not have standing to assert its cross- claim , and its The within claim for property damage does not fall within the ambit ofInsurance Law 3240(d). Therefore , absent contentions regarding the timeliness of the disclaimer are without merit. proof that there was prejudice to the insured by the alleged delay in disclaiming liability based on an exclusion in the insurance policy, Kingstone is not estopped from qlaking such a disclaimer Y.S.2d 162 (2d Dept. 2004); 6 AD.3d 692 , 775 Us. Art Co., Inc. 40 AD. 3d 967 , 838 N. 2d 571 (See, Scappatura even if such delay was unreasonable. Toplije v. v. Allstate Ins. Co. [* 6] (2d Dept. 2007); N. Y. Ins. Law 3420(d)). f\ccordingly, plaintiffs complaint against defendant Kingstone , together with all crossclaims asserted against defendant Kingstone , are dismisse Dated: September 27 2011 Cc: Flivkin Fladler LLJP f\ttn: f\lan C. Eagle , Esq. 926 FlFllaza , West lrower Uniondale , NY 11556- 0926 ENTERED SEP f\ustin Graff, Esq. The Scher Law Firm One Old Country Fload , Suite 385 Carle JPlace , NY 11514 Kevin T Conklin , Esq. Mead Hecht Cinklin & Gallagher , LLJP 109 Spencer JPlace Mamaroneck , NY 10543 Nubia, Inc. 250 Fulton f\ venue Hempstead , NY 11550 First Choice Coverage 1 Long Beach Fload Hempstead , NY 11550 3 0 2011 NASSAU COUNTY com CLIRK' S OFFICE
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