Opinion
October 2, 1997
Appeal from Supreme Court, New York County (Ira Gammerman, J.)
There was no ambiguity in the actual policy with respect to the named insureds. Kaufman Company was not an additional insured under the policy, and the LAS Court's reliance on the "COVER NOTE" from the broker as the basis for that conclusion was misplaced. The court cannot create coverage where none exists by virtue of the fact that Kaufman Company had an insurable interest in the stone and/or the anticipated finished products ( see, Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d 27, affd 49 N.Y.2d 924). Accordingly, the antisubrogation rule does not avail Kaufman Company. On the merits, an issue of fact exists as to whether the damage to the stone was caused by Kaufman Company's negligent performance of its alleged contract to process the stone, precluding summary judgment in favor of or against that insured ( see, Rosenbaum v. Branster Realty Corp., 276 App. Div. 167, 168). However, the complaint was properly dismissed as against the individual Kaufman defendants, there being nothing in the record to support an inference that they agreed to manufacture, process or accept delivery of the stone in their individual capacities.
Motion for reargument granted to the extent of recalling and vacating this Court's unpublished decision and order (Appeal No. 61189) entered on June 24, 1997, and substituting therefor a new decision and order, decided simultaneously herewith.
Concur — Sullivan, J.P., Milonas, Williams and Tom, JJ.