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IBEX Construction, LLC v. Utica National Assurance Co.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 4, 2008

IBEX CONSTRUCTION, LLC, ET AL., PLAINTIFFS-APPELLANTS-RESPONDENTS,
v.
UTICA NATIONAL ASSURANCE COMPANY, DEFENDANT-RESPONDENT-APPELLANT.

Order, Supreme Court, New York County (Louis B. York, J.), entered February 27, 2008, which denied plaintiffs' motion for summary judgment declaring that defendant was obligated to defend and indemnify plaintiff IBEX Construction in the underlying personal injury action, and denied defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant plaintiffs' motion, and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Friedman, Gonzalez, Buckley, Sweeny, JJ.

106481/06

The allegations in the personal injury complaint, and the subsequent trial thereof, make clear that the plaintiff in the underlying action claimed he fell from an improperly secured ladder provided by his employer, defendant's insured and a subcontractor of IBEX. In a post-trial appeal, this Court held that IBEX was liable to the employee, pursuant to Labor Law § 240(1) (see Bradley v IBEX Constr., LLC, 54 AD3d 626, 627 [2008]). Thus, IBEX is an additional insured as defined by the policy, i.e., one "held liable for [the insured's] acts or omissions arising out of... ongoing operations performed by [the insured] or [its] subcontractors" (see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 714 [2007]). Defendant's duty to defend IBEX was triggered by the allegations in the underlying complaint, which brought the claims potentially within the scope of coverage (id.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081204

© 1992-2008 VersusLaw Inc.



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