The opinion of the court was delivered by: BARTELS
Mount Vernon alleges the following facts in its complaint and motion papers. Mount Vernon, a Pennsylvania insurance company issued commercial general liability policy number CL2026345 for the period July 15, 1993 to July 15, 1994 to Roma, a New York construction corporation (the "Policy"). In August of 1993 Morris and Celly Yedid of Brooklyn retained Roma to perform renovation work at their Brooklyn home, and Roma subcontracted with South Marlboro Roofing & Sheet Metal, Inc. ("South Marlboro") to perform the roofing portion of that work. During the course of the roofing work, Edgar Galindo, an employee of South Marlboro sustained personal injuries and subsequently brought an action entitled Galindo v. Yedid in New York State Supreme Court, Kings County, index number 45519-93, against the Yedids ("the underlying action"). The Yedids then brought Roma into the underlying action as a third party defendant and Roma tendered the defense of the underlying action to Mount Vernon pending the outcome of the instant declaratory judgment action.
Mount Vernon contends that South Marlboro was an independent contractor under the terms of the Policy and that the Policy excludes personal injury to such independent contractors and their employees and thus disclaims coverage in the underlying action. Additionally, Mount Vernon asserts that notice of the accident was not given in compliance with the "as soon as practicable" terms of the Policy because it did not receive notice of the September 1993 accident until December 1994.
Mount Vernon now seeks summary judgment in this declaratory judgment action that it is neither obligated to defend or indemnify Roma in the underlying action, nor is it obligated to pay any damages awarded against Roma in the underlying action. Mount Vernon also seeks costs and disbursements in this action.
Both Rule 56(e)
of the Federal Rules of Civil Procedure ("Rule") and Rule 3(b)
of the Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule") authorize the Court to grant Mount Vernon's motion on the basis of Roma's failure to oppose the motion. See Champion v. Artuz, 76 F.3d 483, 1996 WL 61160 at *3 (2d Cir. 1996); Federal Trade Commission v. Metropolitan Communications, Corp., 1995 U.S. Dist. LEXIS 13028, No. 94 Civ. 0142, 1995 WL 540050 at *1 (S.D.N.Y. Sept. 11, 1995). The Court, however, will address the merits of the motion nevertheless. For the reasons set forth below, Mount Vernon's summary judgment motion is granted and its application for costs and disbursements is denied.
A motion for summary judgment may be granted only when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553-4, 91 L. Ed. 2d 265 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2nd Cir. 1987); Winant v. Carefree Pools, 709 F. Supp. 57, 59 (E.D.N.Y.) aff'd 891 F.2d 278 (2nd Cir. 1989). The burden rests with the movant to clearly establish the absence of a genuine issue as to any material fact. Donahue, 834 F.2d at 57. The trial court, however, must resolve all ambiguities and draw all inferences against the moving party. Donahue, 834 F.2d at 57; Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2nd Cir. 1985) cert. denied, 484 U.S. 918, 108 S. Ct. 269, 98 L. Ed. 2d 226 (1987).
Applying this standard to Mount Vernon's first contention, namely that the Policy specifically excludes independent contractors subcontracting to do work for Roma, the Court finds support for this claim on the face of the Policy. In pertinent part, Endorsement L278 of the Policy reads as follows:
INDEPENDENT CONTRACTORS EXCLUSION
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.
That South Marlboro was Roma's independent roofing contractor is borne out by the statements made by Frank Direda, president of Roma, to Mount Vernon's agent