Malmon v. East 84TH Apartments Corp.
Decision Date | 19 November 2009 |
Docket Number | 1536. |
Citation | 889 N.Y.S.2d 563,2009 NY Slip Op 08507,67 A.D.3d 566 |
Parties | ANDRZEJ MALMON et al., Plaintiffs, v. EAST 84TH APARTMENTS CORP. et al., Defendants. CONCORD RESTORATION, INC., Third-Party Plaintiff-Respondent, et al., Third-Party Plaintiff, v. MARBLE UNIQUE, LLC, et al., Third-Party Defendants-Appellants, et al., Third-Party Defendants. (And a Second Third-Party Action.) |
Court | New York Supreme Court — Appellate Division |
We find that Concord had notice of the Workers' Compensation Board (WCB) hearing and that its workers' compensation carrier appeared and presented testimony therein. As such, Concord was bound by the WCB determination that Hi-Tech, and not Marble, was the underlying plaintiff's employer at the time of the accident (see Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]). Even without regard to the WCB determination, summary judgment on this issue should have been granted to Marble. The evidence that Hi-Tech was on the work site at the time of the accident and that Marble was not on site, had ceased work months before and did not resume work until months after the accident established movant's entitlement to judgment. Concord presented no evidence to the contrary that would require a trial. However, because the claim against Marble, ultimately unavailing, on its face fell within the ambit of its insurance, Hartford had the duty to defend. As such, summary judgment was properly granted to Concord on that part of its claim (see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708 [2007]; ...
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