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U. S. UNDERWRITERS INS. CO. v. CONGREGATION

October 5, 1995

U. S. UNDERWRITERS INSURANCE CO., Plaintiff, against CONGREGATION B'NAI ISRAEL and WESSA ESKANDAR, Defendants.


The opinion of the court was delivered by: GLEESON

 JOHN GLEESON, United States District Judge:

 U.S. Underwriters Insurance Company ("U.S. Underwriters") has brought this action under 28 U.S.C. § 2201 against Congregation B'nai Israel ("the Congregation") and Wessa Eskandar. U.S. Underwriters seeks a declaration that it is not obligated to defend and indemnify the Congregation in a personal injury action brought against it by Eskandar. Before me are cross-motions for summary judgment by U.S. Underwriters and the Congregation. For the following reasons, U.S. Underwriters' motion is granted, and the cross-motion is denied.

 BACKGROUND

 On February 16, 1993, U.S. Underwriters issued a general liability policy ("the policy") to the Congregation, Yeshiva Shearith Hapletah, Congregation Beth Baruch, Beth Chana School For Girls, Yeshiva Yesode Hatorah, and Congregation Hatorah Vehamitzvah. Two provisions of the insurance policy are of particular relevance to this case.

 First, the policy contains an "Independent Contractors Exclusion," which reads:

 
It is agreed that this policy shall not apply to Bodily Injury, Personal Injury or Property Damage arising out of operations performed for any insured by independent contractors or acts or omissions of any insured in connection with his general supervision of such operations.

 (Declaration of Richard S. Sklarin, Esq., Ex. G) ("Sklarin Decl.")

 Second, the policy contains a provision obligating the insured to notify U.S. Underwriters promptly in the event of an "occurrence, claim or suit." Specifically, the provision states:

 
In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.

 (Id.).

 The current dispute began on June 28, 1993, when Wessa Eskandar, and employee of Sais Construction, Inc., fell off a ladder while working in a building at 620 Bedford Avenue, Brooklyn, New York. Eskandar was seriously injured and had to be taken to the hospital.

 Rabbi Jacob Silberman was the administrator of Yeshiva Shearith Hapletah, Beth Chana School for Girls, and Yeshiva Yesode Hatorah, religious schools which occupied 620 Bedford Avenue and other nearby buildings. He testified at his deposition that he learned about the accident by "word of mouth" a "day or two" after it happened. All he remembered being told was that "somebody fell and they took him to the hospital." (Declaration of Alan C. Trachman, Esq., Ex. A at 33-34) ("Trachman Decl.")

 On September 28, 1993, Eskandar sued the Congregation in state court, alleging that it (a) owned the 620 Bedford Avenue premises; (b) had hired Sais Construction to perform renovations of that building; and (c) was therefore statutorily liable to Eskandar for his injuries. The alleged basis for the Congregation's liability is Section 240 of the Labor Law of the State of New York, under which a property owner is strictly liable for injuries sustained by a subcontractor's employee while using defective or improperly placed scaffolding or other equipment governed by the statute. Weaver v. Lazarus, 93 A.D.2d 859, 461 N.Y.S.2d 363 (2d Dep't 1983) (scaffolding); Bland v. Manocherian, 66 N.Y.2d 452, 497 N.Y.S.2d 880, 488 N.E.2d 810 (1985) (ladder).

 Eskandar's complaint was apparently served on or about November 3, 1993. Within a day or two, Rabbi Silberman forwarded a copy to the insurance broker, and U.S. Underwriters was notified of the claim by the broker. *fn1" On January 12, 1994 U.S. Underwriters served written notice of its intent to disclaim liability to defend and indemnify the Congregation by serving the summons and complaint in this action.

 DISCUSSION

 U.S. Underwriters contends that it is not obligated to defend or indemnify the Congregation for two reasons. First, it argues that the "Independent Contractors Exclusion" clause governs Eskandar's lawsuit against the Congregation, and relieves U.S. Underwriters of any duty to defend or indemnify the Congregation. Second, U.S. Underwriters claims that it may disclaim coverage under the policy ...


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