Summary
noting that a real estate manager is "the person or entity acting as the owner's real estate manager during the policy's effective dates and for 'occurrences' . . . within those dates"
Summary of this case from Vazquez v. Markel Ins. Co.Opinion
2013-12-18
ABM MGMT. CORP., appellant, v. HARLEYSVILLE WORCESTER INSURANCE COMPANY, respondent, et al., defendants.
Lynch & Lynch, Garden City, N.Y. (Brian M. Hussey of counsel), for appellant. Goldberg Segalla, LLP, Garden City, N.Y. (Joanna M. Roberto and Brendan T. Fitzpatrick of counsel), for respondent.
Lynch & Lynch, Garden City, N.Y. (Brian M. Hussey of counsel), for appellant. Goldberg Segalla, LLP, Garden City, N.Y. (Joanna M. Roberto and Brendan T. Fitzpatrick of counsel), for respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON, CHERYL E. CHAMBERS, and SYLVIA O. HINDS–RADIX, JJ.
In an action for a judgment declaring that the defendant Harleysville Worcester Insurance Company is obligated to defend and indemnify ABM Mgmt. Corp. in an underlying action entitled Public Administrator of Queens County, as administrator of the Estate of Vicente Castro Hernandez v. 65–41 Booth Street, Owners, Inc., pending in the Supreme Court, Queens County, under Index No.14881/09, the plaintiff appeals from an order of the Supreme Court, Queens County (Grays, J.), entered April 13, 2012, which granted that defendant's motion for summary judgment declaring that it is not obligated to defend and indemnify the plaintiff in the underlying action, and denied the plaintiff's cross motion for summary judgment declaring that that defendant is so obligated.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant Harleysville Worcester Insurance Company is not obligated to defend and indemnify the plaintiff in the underlying personal injury action.
On June 11, 2007, Vincent Castro Hernandez (hereinafter the decedent) was fatally injured when a major artery in his arm was severed by a shattered glass entrancedoor of a building owned by 65–41 Booth Street Owners, Inc. (hereinafter the owner). From September 2002 through August 2006, the plaintiff, ABM Mgmt. Corp., acted as property manager for the owner. The defendant Harleysville Worcester Insurance Company (hereinafter the respondent) issued a liability policy to the owner, the provisions of which were in effect from June 1, 2007, to June 1, 2008.
The decedent's estate commenced a personal injury action against, among others, the plaintiff. The plaintiff tendered its defense to the respondent based upon language in the policy which extended coverage to the owner's real estate manager. However, the respondent rejected that tender on the ground that the plaintiff was not the owner's real estate manager on the date of the decedent's injury or at any time during the effective dates of the policy.
This declaratory judgment action was initially commenced by the plaintiff as a third-party action in the underlying personal injury action, and was later severed from the personal injury action. The plaintiff seeks a judgment declaring that the respondent is obligated to defend and indemnify it in the personal injury action. The Supreme Court granted the respondent's motion for summary judgment declaring that it has no such obligation, and denied the plaintiff's cross motion for summary judgment declaring that the respondent is so obligated.
In construing policy provisions defining the scope of coverage pursuant to a policy of insurance, courts “first look to the language of the policy” (Consolidated Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d 208, 221, 746 N.Y.S.2d 622, 774 N.E.2d 687), reading it “in light of common speech and the reasonable expectations of a businessperson” (Belt Painting Corp. v. TIG Ins. Co., 100 N.Y.2d 377, 383, 763 N.Y.S.2d 790, 795 N.E.2d 15 [citation and internal quotation marks omitted]; see BP A.C. Corp. v. One Beacon Ins. Group, 8 N.Y.3d 708, 716, 840 N.Y.S.2d 302, 871 N.E.2d 1128) and in a manner that “leaves no provision without force and effect” (Consolidated Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d at 222, 746 N.Y.S.2d 622, 774 N.E.2d 687 [citation and internal quotation marks omitted]; see Vassar Coll. v. Diamond State Ins. Co., 84 A.D.3d 942, 945, 923 N.Y.S.2d 124; Richner Communications, Inc. v. Tower Ins. Co. of N.Y., 72 A.D.3d 670, 671, 898 N.Y.S.2d 615). “[U]nambiguous provisions of an insurance contract must be given their plain and ordinary meaning” (Richner Communications, Inc. v. Tower Ins. Co. of N.Y., 72 A.D.3d at 671, 898 N.Y.S.2d 615), for “the plain language of the policy is determinative, [and a court] cannot rewrite the agreement by disregarding that language” (Fieldston Prop. Owners Assn., Inc. v. Hermitage Ins. Co., Inc., 16 N.Y.3d 257, 264, 920 N.Y.S.2d 763, 945 N.E.2d 1013; 131 Heartland Blvd. Corp. v. C.J. Jon Corp., 82 A.D.3d 1188, 1189, 921 N.Y.S.2d 94). The issue of whether policy language is ambiguous and the interpretation of ambiguous provisions are questions of law for the court ( see White v. Continental Cas. Co., 9 N.Y.3d 264, 267, 848 N.Y.S.2d 603, 878 N.E.2d 1019; 140 Broadway Prop. v. Schindler El. Co., 73 A.D.3d 717, 719, 901 N.Y.S.2d 292). “Thus, the [m]ere assertion by one that contract language means something to him [or her], where it is otherwise clear, unequivocal and understandable when read in connection with the whole contract, is not in and of itself enough to raise a triable issue of fact” (Nisari v. Ramjohn, 85 A.D.3d 987, 990, 927 N.Y.S.2d 358 [citations and internal quotation marks omitted]; see Richner Dev., LLC v. Burlington Ins. Co., 81 A.D.3d 705, 706, 916 N.Y.S.2d 211).
Here, the respondent established its prima facie entitlement to judgment as a matter of law. The respondent's policy provided coverage for, inter alia, “ ‘bodily injury’ or ‘property damage’: (a) That occurs during the policy period; and (b) That is caused by an ‘occurrence.’ “ In addition to the named insured (i.e., the owner), the policy provided coverage to “[a]ny person (other than your employee), or any organization while acting as [the owner's] real estate manager.”
Read together, and in light of “the reasonable expectations of a businessperson” (Belt Painting Corp. v. TIG Ins. Co., 100 N.Y.2d at 383, 763 N.Y.S.2d 790, 795 N.E.2d 15), it is plain that these provisions of the respondent's insurance policy are intended to cover the person or entity acting as the owner's real estate manager during the policy's effective dates and for “occurrences” which occur within those dates. To extend this coverage to the owner's prior real estate managers and to acts or omissions outside the policy's effective dates would improperly rewrite the parties' agreement to include coverage which was never intended ( see Fieldston Prop. Owners Assn., Inc. v. Hermitage Ins. Co., Inc., 16 N.Y.3d at 264, 920 N.Y.S.2d 763, 945 N.E.2d 1013; Morales v. Allcity Ins. Co., 275 A.D.2d 736, 713 N.Y.S.2d 227).
In opposition to the respondent's motion, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the respondent's motion for summary judgment and denied the plaintiff's cross motion for summary judgment.
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the respondent is not obligated to defend and indemnify the plaintiff in the underlying personal injury action ( see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163, cert. denied371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).