Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stellar Mechanical Services of New York, Inc. v. Merchants Insurance of New Hampshire

June 8, 2010

STELLAR MECHANICAL SERVICES OF NEW YORK, INC., ET AL., APPELLANTS,
v.
MERCHANTS INSURANCE OF NEW HAMPSHIRE, RESPONDENT, ET AL, DEFENDANTS.



In an action, inter alia, for a judgment declaring that the defendant Merchants Insurance of New Hampshire is obligated, as the primary insurer, to defend and indemnify the plaintiff Stellar Mechanical Services of New York, Inc., in an underlying personal injury action entitled Marsalona v Brighton Development, LLC, commenced in the Supreme Court, Queens County, under Index No. 26333/03, the plaintiffs appeal from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Cullen, J.), dated January 8, 2009, as denied that branch of their cross motion which was, in effect, for summary judgment declaring that the defendant Merchants Insurance of New Hampshire is obligated, as the primary insurer, to defend and indemnify the plaintiff Stellar Mechanical Services of New York, Inc., in the underlying action, granted the motion of that defendant, inter alia, for summary judgment declaring that it is not obligated to defend and indemnify the plaintiff Stellar Mechanical Services of New York, Inc., in the underlying action, and declared that the defendant Merchants Insurance of New Hampshire is not obligated to defend and indemnify the plaintiff Stellar Mechanical Services of New York, Inc., in the underlying action.

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.

WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, RANDALL T. ENG and ARIEL E. BELEN, JJ.

(Index No. 9105/06)

DECISION & ORDER

ORDERED that the order and judgment is modified, on the law, (1) by deleting the provision thereof denying that branch of the plaintiffs' cross motion which was, in effect, for summary judgment declaring that the defendant Merchants Insurance of New Hampshire is obligated, as the primary insurer, to defend the plaintiff Stellar Mechanical Services of New York, Inc., in the underlying action, and substituting therefor a provision granting that branch of the cross motion which was, in effect, for summary judgment declaring that the defendant Merchants Insurance of New Hampshire is obligated, as the primary insurer, to defend the plaintiff Stellar Mechanical Services of New York, Inc., in the underlying action only from the time the plaintiff Stellar Mechanical Services of New York, Inc., was served with the second amended complaint in the underlying action, and otherwise denying that branch of the cross motion; (2) by deleting the provision thereof granting that branch of the motion of the defendant Merchants Insurance of New Hampshire which was for summary judgment declaring that it is not obligated to defend the plaintiff Stellar Mechanical Services of New York, Inc., in the underlying action, and substituting therefor a provision denying that branch of the motion, and (3) by deleting the provision thereof declaring that the defendant Merchants Insurance of New Hampshire is not obligated to defend and indemnify the plaintiff Stellar Mechanical Services of New York, Inc., in the underlying action, and substituting therefor a provision declaring that Merchants Insurance of New Hampshire is obligated, as the primary insurer, to defend the plaintiff Stellar Mechanical Services of New York, Inc., in that action from the time the plaintiff Stellar Mechanical Services of New York, Inc., was served with the second amended complaint in that action, and to reimburse the plaintiff American Empire Surplus Lines Insurance Company for the costs incurred in connection with the defense of the plaintiff Stellar Mechanical Services of New York, Inc., in that action from the time the plaintiff Stellar Mechanical Services of New York, Inc., was served with the second amended complaint in that action, but is not obligated to indemnify the plaintiff Stellar Mechanical Services of New York, Inc., in that action; as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for an assessment of the costs incurred by the plaintiff American Empire Surplus Lines Insurance Company in connection with the defense of the plaintiff Stellar Mechanical Services of New York, Inc., in the underlying action from the time the plaintiff Stellar Mechanical Services of New York, Inc., was served with the second amended complaint in that action, and the entry of an appropriate amended judgment thereafter.

In a contract dated May 12, 2003, the plaintiff Stellar Mechanical Services of New York, Inc. (hereinafter Stellar), agreed to install a heating, ventilation, and air conditioning system in a particular building that was being constructed. Stellar was insured under a commercial general liability insurance policy issued by the plaintiff American Empire Surplus Lines Insurance Company (hereinafter American).

In a subcontract dated May 24, 2003, Stellar subcontracted the duct work to the defendant Serge Duct Design (hereinafter Serge). At the time Serge's owner executed the subcontract, he also executed an "Indemnity Agreement and Agreement to Maintain Certain Insurance" (hereinafter the indemnity agreement), which, Stellar's "recording secretary" explained, "belong[ed] to" the subcontract. As the subcontract effectively did, the indemnity agreement, in effect, obligated Serge to name Stellar Mechanical Services of NY II, a trade name often used by Stellar, as an "additional insured" on Serge's insurance policies on "a primary and non-contributory basis." In addition, as the subcontract did, the indemnity agreement also obligated Serge, "to the fullest extent permitted by law," to "indemnify, hold harmless and defend" Stellar "from and against all claims, damages, losses and expenses including but not limited to attorney's fees arising out of or resulting from the work of [Serge] provided any such claim, damage, loss or expense [was] attributable to," inter alia, "bodily injury," and was "caused in whole or in part by any act or omission of" Serge's.

Serge was insured under a commercial general liability insurance policy issued by the defendant Merchants Mutual Insurance Company, sued herein as Merchants Insurance of New Hampshire (hereinafter Merchants). Serge's policy specified that an "additional insured" included "[a]ny person or organization" that Serge was "required by a written contract, agreement or permit to name as an insured... but only with respect to liability arising out of," inter alia, "work" Serge "performed for" the person or organization "at the location designated in the contract, agreement or permit."

After the subcontract and indemnity agreement were executed, Serge provided Stellar with a certificate of insurance. The certificate indicated that Stellar was an additional insured under Serge's insurance policy.

On July 11, 2003, the defendant Michael Marsalona, an employee of another subcontractor working on the project, fell through an opening in the building's roof, and allegedly was injured. The insurance policies of Stellar and Serge were effective on the date of the accident.

On or about November 6, 2003, Marsalona commenced a personal injury action (hereinafter the underlying action) against certain entities, alleging that their employees were negligent, violated Labor Law §§ 200, 240, and § 241, and caused his injuries. He did not name Stellar or Serge as defendants in that action. On or about August 17, 2005, Marsalona served an amended complaint in the underlying action naming, among others, Stellar as a defendant in that action.

In a letter to Merchants dated February 22, 2006, Stellar demanded that Merchants defend and indemnify Stellar in the underlying action. However, in a letter written in response, Merchants, which had conducted an investigation, disclaimed coverage. First, Merchants asserted that its investigation revealed that the "loss" did "not arise out of the work performed by Serge." In addition, Merchants, noting that a provision in Serge's insurance policy required that Merchants be given notice of an "occurrence" or a "suit" as soon as practicable, asserted that "notice of [the] loss by Stellar[ ], as an additional insured, was not provided timely."

On or about March 27, 2006, Marsalona, who obtained leave of court, served a second amended complaint in the underlying action, naming, among ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.