Kel-Mar Designs, Inc. v. Harleysville Ins. Co. of N.Y.
| Decision Date | 30 April 2015 |
| Docket Number | 14672, 650871/12. |
| Citation | 8 N.Y.S.3d 304,2015 N.Y. Slip Op. 03607,127 A.D.3d 662 |
| Parties | KEL–MAR DESIGNS, INC., Plaintiff–Appellant, v. HARLEYSVILLE INSURANCE COMPANY OF NEW YORK, et al., Defendants–Respondents. |
| Court | New York Supreme Court — Appellate Division |
Kenney Shelton Liptak Nowak LLP, Buffalo (Timothy E. Delahunt of counsel), for appellant.
Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for respondents.
FRIEDMAN, J.P., RENWICK, MOSKOWITZ, RICHTER, CLARK, JJ.
Order and judgment (one paper), Supreme Court, New York County (Eileen A. Rakower, J.), entered January 14, 2014, which denied plaintiff's motion for summary judgment, granted defendants' motion for summary judgment, and declared that defendants do not have a duty to defend or indemnify plaintiff, Frost Equities, or Walgreens in the underlying personal injury action, unanimously reversed, on the law, without costs, the declaration vacated, defendants' motion denied, and plaintiff's motion granted to the extent of declaring that defendant Harleysville Insurance Company of New York (defendant), as co-primary insurer with RLI Insurance Company (RLI), has a duty to defend and indemnify plaintiff and to pay its proportionate share of defense and indemnity costs in the underlying action.
The insurance policy that defendant provided to subcontractor Arcadia (the Harleysville policy) provides additional insured coverage to plaintiff general contractor only for “liability caused, in whole or in part, by the acts or omissions of [Arcadia] ... in the performance of [Arcadia's] ongoing operations for the additional insured.” The loss at issue in the underlying action—a personal injury suffered by an Arcadia employee when he lost his footing on a stairway while working on a construction project—resulted, at least in part, from “the acts or omissions” of the Arcadia employee while performing his work (i.e., his loss of footing while on the stairway), regardless of whether the Arcadia employee was negligent or otherwise at fault for his mishap (see Strauss Painting, Inc. v. Mt. Hawley Ins. Co., 105 A.D.3d 512, 513, 963 N.Y.S.2d 197 [1st Dept.2013], mod. on other grounds 24 N.Y.3d 578, 2 N.Y.S.3d 390, 26 N.E.3d 218 [2014] ; W & W Glass Sys., Inc. v. Admiral Ins. Co., 91 A.D.3d 530, 530–531, 937 N.Y.S.2d 28 [1st Dept.2012] ). Accordingly, defendant is obligated both to defend and indemnify plaintiff as an additional insured under the Harleysville policy.
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