The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is a diversity action in which plaintiff Graves Brothers, Inc. ("plaintiff"), a construction contractor, is seeking, inter alia, a declaration that the defendant insurance company, National Fire & Marine Company ("defendant"), is, by the terms of a commercial general liability ("CGL") insurance policy which it issued, contractually obligated to defend and indemnify plaintiff in an underlying lawsuit. Now before the Court is plaintiff's motion [#10] for partial summary judgment on plaintiff's first and third causes of action, seeking a declaratory judgment that defendant is obligated to pay for plaintiff's defense. For the reasons that follow, the application is denied.
The underlying lawsuit against plaintiff arises from the extremely unfortunate death of a roofing laborer, Troy Robertson ("Robertson"), who died as a result of a fall. In that regard, plaintiff was the general contractor on a renovation project for a building located at 1171 North Clinton Avenue in the City of Rochester, and Robertson's employer, Kevin VanVranken Contracting, Inc. ("VanVranken") was the roofing sub-contractor. While working on the roof of the subject property, Robertson slipped and fell, and later died at the hospital from his injuries. Robertson's executrix subsequently sued plaintiff, VanVranken, and the property owner, in New York State Supreme Court, Wayne County. The complaint in the Supreme Court action ("the underlying action") alleges, in relevant part:
On a date prior to March 8, 2004, Group 14621 Community Association, Inc. [the property owner], Graves Brothers Home Improvement, and Kevin VanVranken Contracting, Inc., entered into an agreement for the installation of a roof on premises located at 1171-1173 North Clinton Avenue, Rochester, New York.
Upon information and belief, . . . Graves Brothers Home Improvement acted as the general contractor(s); and Kevin VanVranken Contracting, Inc., acted as the subcontractor . . . .
At all times herein relevant, Troy Robertson, now deceased, was an employee of Kevin VanVranken Contracting, Inc. . . . .
On or about March 8, 2004, Group 14621 Community Association, Inc. and/or Graves Brothers Home Improvement had general and primary charge, supervision, and control of the work being performed by Kevin VanVranken Contracting, Inc., during the course of the installation of [the] roof . . . .
On or about March 8, 2004, [Robertson], while working in the course of his employment, and while working on the roof of the aforesaid premises, fell from a height ...