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CIVIL COURT OF THE CITY OF NEW YORK, NEW YORK COUNTY 1968.NY.42203 <>; 293 N.Y.S.2d 403; 57 Misc. 2d 510 June 20, 1968 COMMERCIAL BANK OF NORTH AMERICA, PLAINTIFF,v.EMPLOYERS INSURANCE OF WAUSAU, DEFENDANT Emanuel Morganbesser for plaintiff. Hanner, Fitzmaurice & Onorato for defendant. Harold Birns, J. Author: Birns

Harold Birns, J.

Author: Birns

 Pursuant to CPLR 3213 and section 167 of the Insurance Law, plaintiff moved for summary judgment upon the ground that this action is based upon a judgment for the payment of money only, and that there is no defense thereto, in that the defendant, having issued a liability policy to one Giacamelli, had refused to pay the judgment secured against him, and the administrator of his estate, who was substituted later as defendant.

The plaintiff's motion for summary judgment is granted. There is no issue of fact to be tried inasmuch as the defendant is estopped from raising its defense.

The present action by the Commercial Bank of North America against the above-named defendant follows the trial of a negligence action in October, 1966 wherein Annie Jackson and her husband, Melvin Jackson, seeking damages for negligence, recovered jury verdicts totaling $1,800 against the Commercial Bank of North America and one Carlo Giacamelli jointly.

A cross claim by the Commercial Bank against Giacamelli was decided by the court alone in favor of the Commercial Bank (see Jackson v. Commercial Bank of North America, N. Y. L. J., Oct. 17, 1966).

At the jury trial, after both sides had rested, the court was apprised of the death of Giacamelli but directed that the trial continue. Following the verdicts and appropriate legal proceedings in Rockland County, John Hall, the County Treasurer, was appointed as the administrator for the estate of Giacamelli. Thereafter a motion for summary judgment brought by the bank on its cross claim was granted against Hall, as administrator of said estate.

Giacamelli, during his lifetime, was a carpentry contractor. The defendant herein had issued a liability policy on March 22, 1960 for a period of one year insuring Giacamelli covering "A. Bodily Injury No. 1. Premises and Operations to the extent of injuries to a person injured not exceeding $10,000, and for each accident not exceeding $20,000." According to the exhibit submitted by defendant in connection with its answering affidavits there was no coverage for "A. Products completed operations."

At the jury trial, Mrs. Jackson claimed that on October 25, 1960, at a time when she was cleaning the basement of the Commercial Bank located on Fifth Avenue and 17th Street, a piece of the basement ceiling, then under repair and restoration by Giacamelli, fell and struck her on the head causing injuries for which recovery was obtained. It was Giacamelli's position, among other claims, that the repair work had been completed on October 17, 1960, and therefore he could not be responsible for Mrs. Jackson's injuries.

The defendant now asserts, as did Giacamelli in the prior action, that the repair work in question had been terminated on October 17, 1960 and since the accident occurred on October 25, a week later, it was not responsible because Giacamelli did not have "completed operations coverage".

It may be assumed that by "completed operations coverage" the defendant would have undertaken to insure against accidents which occurred after a job was completed.

It appears that the defendant notified its assured, Giacamelli, that while the defendant represented Giacamelli it would not pay any judgment which might be recovered against him, since he did not have "completed operations coverage" at the time.

It is to be noted that during the trial of the action, in which Giacamelli was a party, the defendant employed counsel who controlled the defense offered in behalf of Giacamelli.

In opposing plaintiff's motion for summary judgment, defendant points to the testimony of a witness it called at the trial, Mr. Ellis Ordan, a vice-president of the Commercial Bank, to the effect that Giacamelli's work was completed on October 17, 1960. Defendant, however, ignores the testimony also elicited at the trial, from Mr. William Bitzig, a sprinkler contractor, that repair of the ceiling by Giacamelli was still continuing as of October 27 in preparation for the installation of sprinklers.

The conflict between the testimony of Mr. Ordan and Mr. Bitzig was one of the many questions of fact the jury was called upon to resolve as well as whether the particular portion of the ceiling under repair alleged ...

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