AB Green Gansevoort, LLC v. Peter Scalamandre & Sons, Inc.

• Decision Date: 08 January 2013
• Citation: 2013 N.Y. Slip Op. 00031,102 A.D.3d 425,961 N.Y.S.2d 3
• Court: New York Supreme Court — Appellate Division
• Parties: AB GREEN GANSEVOORT, LLC, Plaintiff–Respondent, v. PETER SCALAMANDRE & SONS, INC., et al., Defendants, Liberty Mutual Insurance Company, Defendant–Appellant.

102 A.D.3d 425

961 N.Y.S.2d 3

2013 N.Y. Slip Op. 00031

AB GREEN GANSEVOORT, LLC, Plaintiff–Respondent,

v. PETER SCALAMANDRE & SONS, INC., et al., Defendants,Liberty Mutual Insurance Company, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Jan. 8, 2013.

Jaffe & Asher LLP, New York (Marshall T. Potashner of counsel), for appellant.

Barry, McTiernan & Moore, New York (Laurel A. Wedinger of counsel), for respondent.

TOM, J.P., SWEENY, ACOSTA, DeGRASSE, RICHTER, JJ.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered December 20, 2011, which, to the extent appealed from, denied defendant Liberty's motion for summary judgment dismissing the amended complaint as against it, unanimously modified, on the law, to declare that Liberty has no obligation to defend or provide insurance coverage for plaintiff AB Green Gansevoort, LLC (Green) in the underlying personal injury action, and otherwise affirmed, without costs.

Plaintiff Green commenced this declaratory judgment action seeking liability coverage from defendant Liberty Mutual Insurance Company as an additional insured. The underlying action was brought by Juan Vargas, who alleges that he suffered bodily injury while working on a construction site owned by Green. Pavarini McGovern, LLC served as general contractor on the construction site. Pavarini then retained as a subcontractor Peter Scalamandre & Sons, Inc. Scalamandre then purchased concrete from Ferrara Brothers Building Materials Corp. pursuant to an unsigned purchase order.

Ferrara obtained a commercial lines insurance policy from Liberty. The policy stated, in pertinent part, that an organization is added as an additional insured “when you and such ... organization have agreed in writing in a contract or agreement that such ... organization be added as an additional insured on your policy.”

Liberty moved for summary judgment dismissing Green's complaint seeking coverage as an additional insured under the policy issued to Ferrara. Liberty asserted that since Green did not produce any written agreement between itself and Ferrara naming Green as an additional insured, under the plain language of the policy, there was no question of fact as to whether an agreement existed between Ferrara and Green. The motion court denied Liberty's motion for summary judgment and this appeal ensued.

Liberty persuasively argues that this Court's decision in Linarello v. City Univ. of N.Y., 6 A.D.3d 192, 774 N.Y.S.2d 517 [1st Dept. 2004] requires that there be an express written agreement between Ferrara and Green for Green to be an additional insured ( id. at 195, 774 N.Y.S.2d 517). The language of the insurance policy at issue in Linarello is exactly the same as the policy here. It specifically provides that there must be a written agreement between the insured and the organization seeking coverage to add that organization as an additional insured. No such agreement exists here. Absent such an agreement, the plain terms of the policy have not been met and Green cannot seek coverage from Liberty as an additional insured. Although policies containing broader language have...