National Union Fire Insurance Company of Pittsburgh, Pa. v. Utica First Insurance Company

• Decision Date: 26 April 2004
• Docket Number: 2003-00232.
• Citation: 775 N.Y.S.2d 175,2004 NY Slip Op 03111,6 A.D.3d 681
• Parties: NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., et al., Respondents, v. UTICA FIRST INSURANCE COMPANY, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

6 A.D.3d 681

775 N.Y.S.2d 175

2004 NY Slip Op 03111

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., et al., Respondents, v. UTICA FIRST INSURANCE COMPANY, Appellant, et al., Defendant.

2003-00232.

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

April 26, 2004.

In an action, inter alia, for a judgment declaring that the defendant Utica First Insurance Company is obligated to defend and indemnify the plaintiff Community Housing Innovations, Inc., in an action entitled Kronenberg v Community Hous. Innovations, pending in the Supreme Court, Suffolk County, under Index No. 97-25762, Utica First Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Willen, J.H.O.), dated October 1, 2002, as denied its motion for summary judgment and granted the plaintiffs' cross motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that the defendant Utica First Insurance Company is not obligated to defend and indemnify the plaintiff Community Housing Innovations, Inc., in the underlying action.

The plaintiff Community Housing Innovations, Inc. (hereinafter CHI), hired nonparty All Phase Alterations to perform certain work on premises it owned. All Phase agreed to obtain liability insurance naming CHI as an additional insured. All Phase obtained a liability policy from the defendant Utica First Insurance Company, but the policy limited the circumstances in which CHI was an additional insured. Specifically, CHI was an additional insured only for liability arising out of the financial control it had over All Phase or for liability arising out of certain premises owned by CHI, but only while All Phase leased or occupied those premises. An employee of All Phase was injured while working at CHI's Bay Shore premises, and he commenced the underlying personal injury action against CHI. CHI and its liability insurer, the plaintiff National Union Fire Insurance Company of Pittsburgh, Pa., requested that Utica First defend CHI in the underlying action. Initially, Utica First disclaimed coverage based on a policy exclusion applicable to employees of All Phase injured during the course of their employment with All Phase.

Thereafter, National Union and CHI brought this action, inter alia, for a judgment declaring that Utica First is obligated to defend and indemnify CHI in the underlying...