Bassuk Bros., Inc. v. Utica First Insurance Company

• Decision Date: 17 November 2003
• Docket Number: 2002-10732.
• Citation: 768 N.Y.S.2d 479,1 A.D.3d 470,2003 NY Slip Op 18423
• Parties: BASSUK BROS., INC., Appellant, v. UTICA FIRST INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Respondent. LEGION INSURANCE COMPANY, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

1 A.D.3d 470

768 N.Y.S.2d 479

2003 NY Slip Op 18423

BASSUK BROS., INC., Appellant, v. UTICA FIRST INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Respondent LEGION INSURANCE COMPANY, Third-Party Defendant-Appellant.

2002-10732.

Appellate Division of the Supreme Court of the State of New York, Second Department.

November 17, 2003.

In an action for a judgment declaring that the defendant third-party plaintiff, Utica First Insurance Company, is obligated to defend and indemnify the plaintiff, Bassuk Bros., Inc., in an underlying action entitled Miah v Bassuk Bros., pending in the Supreme Court, Kings County, under Index No. 45300/99, the plaintiff and the third-party defendant, Legion Insurance Company, appeal from so much of an order of the Supreme Court, Kings County (Dowd, J.), dated November 1, 2002, as denied their motion, inter alia, for leave to amend the complaint and the third-party answer, and granted the cross motion of the defendant third-party plaintiff for summary judgment declaring

that it is not obligated to defend and indemnify the plaintiff in the underlying action and to reimburse the third-party defendant for indemnity payments made on behalf of the plaintiff.

Ordered that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that Utica First Insurance Company is not obligated to defend and indemnify the plaintiff in the underlying action and to reimburse the third-party defendant for indemnity payments made on behalf of the plaintiff.

The defendant third-party plaintiff, Utica First Insurance Company (hereinafter Utica), issued a general liability insurance policy to the P-K De-Ma Painting and General Construction Corp. (hereinafter P-K) which contained an exclusion for "bodily injury to an employee of an Insured if it occurs in the course of employment." A P-K employee was injured in the course of his employment and sued the manager of the property where the accident occurred, the plaintiff, Bassuk Bros., Inc. (hereinafter Bassuk). Bassuk commenced this action against Utica, seeking a declaration that Utica defend and indemnify it as a potential additional insured under the Utica policy. The Supreme Court determined that Utica is not so obligated.

An exclusion from coverage "must be specific and clear in order to be enforced" (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984]), and an ambiguity in an...