Pyramid Brokerage Co., Inc. v. Zurich Am. Ins. Co.

• Decision Date: 19 March 2010
• Citation: 897 N.Y.S.2d 327,71 A.D.3d 1386
• Court: New York Supreme Court — Appellate Division
• Parties: PYRAMID BROKERAGE COMPANY, INC., Plaintiff, v. ZURICH AMERICAN INSURANCE COMPANY, et al., Defendants. (Action No. 1.) Pyramid Brokerage Company, Inc., Plaintiff-Appellant-Respondent, v. Comfort Systems USA, Inc., ABJ Fire Protection Co., Inc., Woodcock & Armani Mechanical Contractors, Formerly known as Armani Mechanical and Woodcock & Associates, Inc., Defendants-Respondents-Appellants. (Action No. 2.).

897 N.Y.S.2d 327

71 A.D.3d 1386

PYRAMID BROKERAGE COMPANY, INC., Plaintiff,

v.ZURICH AMERICAN INSURANCE COMPANY, et al., Defendants. (Action No. 1.)

Pyramid Brokerage Company, Inc., Plaintiff-Appellant-Respondent,

v.Comfort Systems USA, Inc., ABJ Fire Protection Co., Inc., Woodcock & Armani Mechanical Contractors, Formerly known as Armani Mechanical and Woodcock & Associates, Inc., Defendants-Respondents-Appellants. (Action No. 2.).

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

March 19, 2010.

Hancock & Estabrook, LLP, Syracuse (Alan J. Pierce of Counsel), for Plaintiff-Appellant-Respondent.

Trevett Cristo Salzer & Andolina P.C., Rochester (Valerie L. Barbic of Counsel), for Defendants-Respondents-Appellants.

PRESENT: SMITH, J.P., PERADOTTO, PINE, AND GORSKI, JJ.

MEMORANDUM:

Pyramid Brokerage Company, Inc., the plaintiff in both actions, commenced action No. 1 seeking a declaration that defendant Zurich American Insurance Company (Zurich) was obligated to defend and indemnify it in the underlying Labor Law action ( White v. General Motors Corp., 38 A.D.3d 1193, 831 N.Y.S.2d 812), which was commenced by an employee of Woodcock & Armani Mechanical Contractors, formerly known as Armani Mechanical and Woodcock & Associates, Inc. (Woodcock), a defendant in action No. 2. Plaintiff thereafter commenced action No. 2 against defendant Comfort Systems USA, Inc. (Comfort) andits related business entities, including Woodcock (collectively, defendants), asserting causes of action for, inter alia,breach of contract, negligent misrepresentation and intentional misrepresentation. While action No. 2 was pending, Supreme Court declared in action No. 1 that plaintiff was not an insured under the Zurich policy and that Zurich had no duty to defend or indemnify plaintiff in the underlying action. This appeal by plaintiff and cross appeal by defendants concerns only action No. 2.

We conclude that the court properly denied those parts of plaintiff's motion and defendants' cross motion seeking summary judgment on the breach of contract cause of action inasmuch as there is an issue of fact whether defendants orally agreed to name plaintiff as an additional insured under its general liability policy. The record contains an affidavit and the deposition testimony of plaintiff's site project manager. He asserts therein that defendants' representatives informed him that Comfort and its related business entities operated as one company, with a single general liability insurance policy, and that they orally agreed to name plaintiff as an additional insured with respect to all work performed by the related entities, including Woodcock. The record also contains, however, deposition testimony of defendants' employees denying knowledge of the existence of an oral agreement as well as documentation from the project that does not reflect any requests or agreements to procure insurance naming plaintiff as an additional insured with respect to the work performed by Woodcock. We thus conclude on the record before us that there is an issue of fact with respect to the existence of an oral agreement, rendering summary judgment on the breach of contract cause of action inappropriate ( see Repka v. Arctic Cat, Inc., 20 A.D.3d 916, 918-919, 798 N.Y.S.2d 629; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

We agree with plaintiff, however, that the court erred in granting that part of the cross motion seeking summary judgment dismissing the intentional misrepresentation cause of action, and we therefore modify the order accordingly. Contrary to defendants' contention, that cause of action sounds in fraud ( see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763) and, accordingly, is governed by the six-year statute of limitations set forth in CPLR 213(8) ( see Old Republic Ins. Co. v. Hansa World Cargo...