Granite State Ins. v Service Star LLC

[*1] Granite State Ins. v Service Star LLC 2018 NY Slip Op 51019(U) Decided on June 20, 2018 Supreme Court, New York County Borrok, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 20, 2018
Supreme Court, New York County

Granite State Insurance, Plaintiff

against

Service Star LLC, Defendant



158510-2017



Plaintiff's Attorney: David Ryan Placke, Esq. Renzulli Law Firm, LLP. 1 North Broadway Suite 1005, White Plains, NY 10601. 914.285.0700

Defendant's Attorney: Tanya M. Branch ,Esq. Brody & Branch LLP 205 Lexington Ave Floor 4th, New York, NY 10016. 212.679.7007. David R. Hornig, Esq. Nicoletti Hornig & Sweeny 88 Pine Street, 7th Floor, New York, NY 10005. 212.220.3830.
Andrew Borrok, J.

Recitation, as required by CPLR § 2219(a), of the papers considered on the review of Granite State Insurance (the Plaintiff)'s motion for summary judgment declaring that it has no duty to defend or indemnify the defendant in a pending action:

PAPERS/NUMBERED

Notice of Motion and Affidavits 1

and Exhibits Annexed

Answering Affidavits and Exhibits Annexed 2

Replying Affidavits and Exhibits Annexed 3

Sur-Reply Affidavits

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

Plaintiff's motion for summary judgment is granted to the extent that the Plaintiff has no duty to defend or indemnify Service Star LLC (the Defendant) from liability based solely on the contractual indemnity between the Defendant and Lufthansa (hereafter defined) and is otherwise denied in its entirety.

Plaintiff commenced this action pursuant to CPLR § 3001 seeking a declaration that it has no duty to defend or indemnify the defendant in connection with a relation to a personal injury action brought by Kaisram Rajcoomar (Rajcoomar) against Lufthansa Cargo AG (Lufthansa) in the United States District Court for the Eastern District of New York (the Rajcoomar Action), Index 16-CV-4150. In this lawsuit, Rajcoomar seeks money damages for personal injuries sustained while allegedly working for the Defendant from an accident on March 30, 2015 at or about the interior cargo loading area, Building No. 23, between Bay 33 and [*2]Bay 34, at JFK International Airport, Queens, New York.

The Plaintiff issued a Workers' Compensation and Employers Liability Insurance Policy WC 051-75-7708 (the Policy) which was in effect from September 26, 2014 to September 26, 2015. To wit: it is not disputed that the Policy was in effect during the time in which Rajcoomar was injured. The Policy however excluded coverage for liability assumed by a contract.

Summary Judgment should be granted when the movant presents evidentiary proof in admissible form that there are no triable issues of material fact and that there is either no defense to the cause of action or that the cause of action or defense has no merit. CPLR § 3212(b). The burden is initially on the movant to make a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence in admissible form to demonstrate the absence of any material fact. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]. Failure to make such a prima facie showing requires denial of the motion. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] citing Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]. Once the showing has been made, the burden shifts to the opposing party to produce evidence in admissible form sufficient to establish the existence of a material issue of fact which requires a trial. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] citing Zuckerman v. City of New York, 49 NY2d 557, at 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980].

The Plaintiff argues it is entitled to summary judgment because (1) Lufthansa's first cause of action as third party plaintiff in the Rajcoomar Action is for indemnification of Lufthansa pursuant to a contract between the Defendant and Lufthansa (the Lufthansa Contract), which is excluded from coverage under the Policy, and (2) Lufthansa's second cause of action in the Rajcoomar Action for common law indemnification is barred by the Workers Compensation Law because Rajcoomar did not suffer a "grave injury" as that term is defined in Section 11 of the Workers' Compensation Law.

The Policy by its terms provides that contractual liability is excluded from coverage. The defendant's attorney in her paragraph 5 of her affirmation argues in opposition to the motion that discovery is not complete and that there are "potential issues of whether GRANITE STATE timely denied coverage". However, she alleges no facts whatsoever in support of this proposition and therefore does not raise a material issue of fact. Accordingly, the Plaintiff's motion for summary judgment is granted with respect to the Lufthansa's first cause of action in the Rajcoomar action.

With respect to Lufthansa's second cause of action, inasmuch as the Defendant's liability does not arise under a contractual obligation, and would arise only under a finding of a "grave injury", the policy exclusion does not apply. In addition, as there has not been a determination by the court in the Rajcoomar Action that Lufthana's claim is barred by the Workers Compensation Law (i.e., that Rajcoomar did not suffer a grave injury), the Plaintiff's motion for summary judgment is denied. (See Zurich-American Insurance Companies v. Atlantic Mutual Insurance Companies, 64 NY2d 419, 477 N.E.2d 441, 488 N.Y.S.2d 139 (1989).

Accordingly, the Plaintiff's motion is granted solely to the extent that the Plaintiff has no duty to defend or indemnify the Defendant based solely on the contractual indemnity between the Defendant and Lufthansa and is otherwise denied in its entirey.

______________________________

Dated: June 20, 2018

Hon. Andrew Borrok