Chunn v. New York City Housing Authority

• Decision Date: 23 October 2008
• Docket Number: 590332/07.,4382.,116764/06.,590870/07.
• Citation: 2008 NY Slip Op 8019,866 N.Y.S.2d 145,55 A.D.3d 437
• Parties: CHRISTOPHER CHUNN, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Respondent, and AMERICAN SECURITY SYSTEMS, INC., Appellant. NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff-Respondent, v. AMERICAN SECURITY SYSTEMS, INC., Third-Party Defendant-Appellant. NEW YORK CITY HOUSING AUTHORITY, Second Third-Party Plaintiff-Respondent, v. NATIONAL CASUALTY COMPANY et al., Second Third-Party Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

55 A.D.3d 437

866 N.Y.S.2d 145

2008 NY Slip Op 8019

CHRISTOPHER CHUNN, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Respondent, and AMERICAN SECURITY SYSTEMS, INC., Appellant.

NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff-Respondent, v. AMERICAN SECURITY SYSTEMS, INC., Third-Party Defendant-Appellant.

NEW YORK CITY HOUSING AUTHORITY, Second Third-Party Plaintiff-Respondent, v. NATIONAL CASUALTY COMPANY et al., Second Third-Party Defendants-Appellants.

4382.

116764/06.

590332/07.

590870/07.

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

October 23, 2008.

Order, Supreme Court, New York County (Louis B. York, J.), entered March 11, 2008, which granted the motion of defendant/third-party plaintiff New York City Housing Authority (NYCHA) for summary judgment declaring that third-party defendants American Security Systems, Inc. (ASSI) and National Casualty Company (NCC) are obligated to defend and indemnify it in the underlying personal injury action and denied ASSI's cross motion to sever the second third-party action and for a declaration that the indemnification provision of the service contract between NYCHA and ASSI is void and unenforceable pursuant to General Obligations Law § 5-322.1, unanimously modified, on the law, NYCHA's motion for summary judgment denied as to the obligation of ASSI and NCC to indemnify it in the underlying action and ASSI's motion to sever granted, and otherwise affirmed, without costs.

The comprehensive general liability (CGL) policy issued by NCC to ASSI provides for insurance for NYCHA as an additional insured with respect to liability for, inter alia, bodily injury caused, in whole or in part, by ASSI's "acts or omissions." The complaint asserts that plaintiff's injury was caused, in whole or in part, by ASSI's acts or omissions with respect to the NYCHA building's systems. Therefore, NYCHA is entitled to a defense under the policy (see Santos v BRE/Swiss, LLC, 9 AD3d 303 [2004]). Contrary to the insurers' contention that they have demonstrated as a matter of law that "there is no possible factual or legal basis on which [they] might eventually" be obligated to indemnify NYCHA (quoting Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 312 [1984] [internal quotation marks and citation omitted]), the affidavit by plaintiff's sister, a tenant in the building, which asserts that the intercom had been broken for several months before the incident in which plaintiff was...