Douglas v. Mister Sports

• Decision Date: 18 January 2018
• Docket Number: 5472,Index 20149/15E
• Parties: Bernadette DOUGLAS, Plaintiff, v. MISTER SPORTS, et al., Defendants. 125 Fordham LLC, Third–Party Plaintiff–Appellant, v. Jay J. Kim doing business as International Pursuit of New York, Inc., Third–Party Defendant, LIG Insurance, Third–Party Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 550
67 N.Y.S.3d 629

Bernadette DOUGLAS, Plaintiff,
v.
MISTER SPORTS, et al., Defendants.

125 Fordham LLC, Third–Party Plaintiff–Appellant,
v.
Jay J. Kim doing business as International Pursuit of New York, Inc., Third–Party Defendant,

LIG Insurance, Third–Party Defendant–Respondent.

5472
Index 20149/15E

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

ENTERED: JANUARY 18, 2018

67 N.Y.S.3d 630

Babchik & Young, LLP, White Plains (Thomas G. Connolly of counsel), for appellant.

The Chartwell Law Offices, LLP, New York (Christopher Wolseger of counsel), for respondent.

Acosta, P.J., Sweeny, Gische, Andrias, Gesmer, JJ.

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered November 2, 2016, which, upon renewal and reargument, granted third-party defendant LIG Insurance's motion for summary judgment declaring that it is not obligated to defend or indemnify third-party plaintiff (Fordham) in the underlying personal injury action, and so declared, and denied Fordham's motion for summary judgment declaring in its favor, unanimously affirmed, with costs.

Fordham is not entitled to coverage in the underlying action under the insurance policy LIG issued to defendant International Pursuit of New York, Inc., because the conditions for coverage under the supplementary payments provision of the policy have not been satisfied (see Rojas v. New York El. & Elec. Corp., 118 A.D.3d 642, 989 N.Y.S.2d 33 [1st Dept. 2014] ). The provision states that if LIG defends an insured (International) in a suit, it will also defend an indemnitee of the insured who is named in the suit (Fordham), if, inter alia, "[t]he obligation to defend, or the cost of the defense of, that indemnitee, has also been assumed by the insured in the same ‘insured contract’ [lease agreement]." The lease agreement between Fordham as landlord and International as tenant requires International to indemnify Fordham for all liabilities "for which [Fordham] shall not be reimbursed by insurance." Thus, so long as Fordham has not exhausted its own insurance, International has no obligation...