S. P. v. Dongbu Ins. Co.

• Decision Date: 31 July 2019
• Docket Number: Index No. 516626/16,2017–04102
• Citation: 174 A.D.3d 911,106 N.Y.S.3d 365
• Parties: S. P., etc., Respondent, v. DONGBU INSURANCE COMPANY, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 911

106 N.Y.S.3d 365

S. P., etc., Respondent,

v.DONGBU INSURANCE COMPANY, et al., Appellants.

2017–04102

Index No. 516626/16

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

Argued March 14, 2019

July 31, 2019

Gerber Ciano Kelly Brady LLP, New York, N.Y. (Joanna Roberto and Brian Biggie of counsel), for appellants.

Hecht, Kleeger & Damashek, P.C. (Ephrem J. Wertenteil, New York, NY, of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against an insured of the defendant Dongbu Insurance Company, the defendants appeal from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated March 8, 2017. The order denied the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants' motion pursuant to CPLR 3211(a)(7) which was to dismiss the complaint insofar as asserted against the defendant York Risk Services Group, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs payable to the plaintiff.

The defendant Dongbu Insurance Company (hereinafter the insurer) issued to nonparty Kosher Food Depot, Inc. (hereinafter KFD or the insured), a "Businessowners Policy" covering the period from March 11, 2013, to March 11, 2014. The defendant York Risk Services Group (hereinafter York) is the claims administrator for the policy. The policy includes an endorsement entitled "Limitation of Coverage to Designated Premises or Project" (hereinafter the endorsement), which added the following provision to "Section II—Liability": "This insurance applies only to ‘bodily injury’, ‘property damage’, ‘personal and advertising injury’ and medical expenses arising out of: 1. The ownership, maintenance or use of the premises shown in the Schedule and operations necessary or incidental to those premises; or 2. The project shown in the Schedule."

The endorsement's schedule and the "Businessowners Policy Declarations" identified the premises as 1279 42nd Street in Brooklyn, and the declarations described the insured's business as "Grocery."

On March 6, 2014, the plaintiff allegedly was injured in front of 1215 44th Street in Brooklyn (hereinafter the accident site), when he was struck by a flatbed pushcart or hand truck operated by an employee of KFD during the course of employment. The plaintiff subsequently commenced a personal injury action against KFD, and the insurer disclaimed coverage on the principal ground that the accident site was not a covered location under the policy. The plaintiff later moved for leave to enter a default judgment against KFD. The motion was granted, and a judgment was entered in favor of the plaintiff and against KFD. A copy of the judgment with notice of entry was served upon KFD, as well as the insurer and York.

Subsequently, the plaintiff commenced this action against the insurer and York pursuant to Insurance Law § 3420(a)(2) to recover the amount of the unsatisfied judgment entered in the personal injury action. The plaintiff alleged that, at the time of the accident, KFD's employee was "engaged in activities necessary and incidental to the business of [KFD]." The defendants made a pre-answer motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, and the plaintiff opposed the motion. In an order dated March 8, 2017, the Supreme Court denied the motion "based upon issues of fact, including but not limited to the meaning of the policy language in this particular case with respect to ‘use of the premises shown in the schedule and operations necessary or incidental to those premises,’ upon which defendant[s] relie[d]." The defendants appeal.

Pursuant to Insurance Law § 3420(a)(2), an injured person who has obtained an unsatisfied judgment against a tortfeasor may commence an action against the tortfeasor's insurer to recover the amount of the unsatisfied judgment, up to the policy limit (see Lang v. Hanover Ins. Co., 3 N.Y.3d 350, 352, 787 N.Y.S.2d 211, 820 N.E.2d 855 ; D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 662, 563 N.Y.S.2d 24, 564 N.E.2d 634 ; Konig v. Hermitage Ins. Co., 93 A.D.3d 643, 645, 940 N.Y.S.2d 116 ).

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Persaud v. Everest Natl. Ins. Co., 142 A.D.3d 544, 545, 36 N.Y.S.3d 669 ; Lissauer v. Guideone Specialty Mut. Ins., 109 A.D.3d 878, 971 N.Y.S.2d 448 ).

However, a court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) (see CPLR 3211[c] ; Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 ). When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether one has been stated, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ).

"As with the construction of contracts generally, ‘unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court’ " ( Vigilant Ins. Co. v. Bear Stearns Cos., Inc., 10 N.Y.3d 170, 177, 855 N.Y.S.2d 45, 884 N.E.2d 1044, quoting White v. Continental Cas. Co., 9 N.Y.3d 264, 267, 848 N.Y.S.2d 603, 878 N.E.2d 1019 ; see Richner Communications, Inc. v. Tower Ins. Co. of N.Y., 72 A.D.3d 670, 671, 898 N.Y.S.2d 615 ). A policy is read as a whole, and "in construing an endorsement to an insurance policy, the endorsement and the policy must be...