Hargob Realty Associates Inc. v. Fireman's Fund Ins. Co.

• Citation: 73 A.D.3d 856,2010 N.Y. Slip Op. 04143,901 N.Y.S.2d 657
• Court: New York Supreme Court Appellate Division
• Decision Date: 11 May 2010
• Parties: HARGOB REALTY ASSOCIATES, INC., appellant,v.FIREMAN'S FUND INSURANCE COMPANY, doing business as Interstate Fire & Casualty Company, respondent.

73 A.D.3d 856
901 N.Y.S.2d 657
2010 N.Y. Slip Op. 04143

HARGOB REALTY ASSOCIATES, INC., appellant,
v.
FIREMAN'S FUND INSURANCE COMPANY, doing business as Interstate Fire & Casualty Company, respondent.

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

May 11, 2010.

[901 N.Y.S.2d 658]

Goldberg Weprin Finkel Goldstein, LLP, New York, N.Y., for appellant.Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick, Gary D. Centola, and Harris J. Zakarin of counsel), for respondent.PETER B. SKELOS, J.P., FRED T. SANTUCCI, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.

[73 A.D.3d 856] In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying action entitled Bonilla v. Hargob Realty Assoc., pending in the Supreme Court, Kings County, under Index No. 9854/05, the plaintiff appeals from an order of the Supreme Court, Nassau County (Phelan, J.), entered April 2, 2009, which granted the defendant's motion for summary judgment, in effect, declaring that it is not so obligated.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in an underlying action entitled Bonilla v. Hargob Realty Assoc., pending in the Supreme Court, Kings County, under Index No. 9854/05.

The plaintiff entered into a construction contract with nonparty U.S.A. Interior, LLC (hereinafter USAI), pursuant to which USAI was to perform demolition work (hereinafter the project) at certain premises owned by the plaintiff. The only written agreements between USAI and the plaintiff pertaining to the project were a one-page proposal from USAI specifying the bid price and work to be performed (hereinafter the proposal) and a hold harmless agreement. Pursuant to the

[901 N.Y.S.2d 659]

hold harmless agreement, USAI, as the subcontractor, agreed to indemnify and hold harmless the plaintiff, as the owner, “from and against any and all claims, suits, liens, judgment, damages, losses and expenses arising in whole or in part ... from the [73 A.D.3d 857] acts, omissions, breach or default of [USAI] in connection with the performance of any work by or for [USAI],” except for claims arising from Hargob's own negligence.

The defendant Fireman's Fund Insurance Company, doing business as Interstate Fire & Casualty Company (hereinafter the defendant insurer), issued a policy of commercial general liability insurance to USAI that contained an additional insured endorsement. Pursuant to that endorsement, added to the insured persons covered under the subject policy was “any entity the Named Insured is required in a written contract to name as an insured (hereinafter called Additional Insured) ... but only with respect to liability arising out of work performed by or on behalf of the Named Insured for the Additional Insured [emphasis added].”

“The four corners of an insurance agreement govern who is covered and the extent of coverage” ( Sixty Sutton Corp. v. Illinois Union Ins. Co., 34 A.D.3d 386, 388, 825 N.Y.S.2d 46; see Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d 27, 33, 418 N.Y.S.2d 76, affd. 49 N.Y.2d 924, 428 N.Y.S.2d 675, 406 N.E.2d 490). Where a third party seeks the benefit...