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Piotr Szymanski v. 444 Realty Co.

New York Supreme and/or Appellate Courts Appellate Term, First Department


September 28, 2011

PIOTR SZYMANSKI, PLAINTIFF-RESPONDENT,
v.
444 REALTY CO., LLC, INTERBORO INSTITUTE, INC. AND MARLITE CONSTRUCTION CORP.,
DEFENDANTS. MARLITE CONSTRUCTION CORP.,
THIRD-PARTY PLAINTIFF-RESPONDENT,
W & R PRECISION PARTS, INC., THIRD-PARTY DEFENDANT-RESPONDENT,
-AND-
PENN STAR INSURANCE COMPANY,
THIRD-PARTY DEFENDANT-APPELLANT. W & R PRECISION PARTS, INC.,
SECOND THIRD-PARTY PLAINTIFF,
STRUCTURE BUILDERS, INC. D/B/A J & B IRON WORKS,
SECOND THIRD-PARTY DEFENDANT. INTERBORO INSTITUTE, INC.,
THIRD THIRD-PARTY PLAINTIFF,
STRUCTURE BUILDERS AND W & R PRECISION PARTS, INC.,
THIRD THIRD-PARTY DEFENDANTS. INTERBORO INSTITUTE INC.,
FOURTH THIRD-PARTY PLAINTIFF,
CRESA PARTNERS LLC AND CRESA PARTNERS NEW YORK LLC, FOURTH THIRD-PARTY DEFENDANTS.

Per curiam.

Szymanski v 444 Realty Co., LLC

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 28, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., Torres, J.

Third-party defendant Penn Star Insurance Company, as limited by its briefs, appeals from (1) those portions of an order of the Civil Court of the City of New York, New York County (Jeffrey K. Oing, J.), dated March 19, 2009, which denied its motion for summary judgment dismissing the cross claims asserted against it by third-party defendant W & R Precision Parts, Inc., and (2) an order (same court and Judge), dated January 20, 2010, which deemed Penn's subsequent motion, denominated as a motion for summary judgment, to be a motion for leave to reargue the aforesaid order of March 19, 2009, and denied the motion.

Orders (Jeffrey K. Oing, J.), dated March 19, 2009 and January 20, 2010, to the extent appealed from as limited by the briefs, modified, to grant appellant's motions for summary judgment as to liability on its counterclaims and cross claims, and, as modified, affirmed, with one bill of $10 costs; appeal from that portion of the January 20, 2010 order denying appellant's motion for reargument, dismissed, without costs, as taken from a non-appealable order. The Clerk is directed to enter judgment accordingly.

The general liability policy here involved unambiguously excludes from coverage any personal injuries to independent contractors, subcontractors, and their employees at the construction site. Since it is undisputed that plaintiff was an employee of a subcontractor of the insured and was working within the scope of his employment at the time of his injury, the policy exclusion bars coverage for his injuries (see 385 Third Ave. Assoc., L.P. v Metropolitan Metals Corp., 81 AD3d 475, 476 [2011], lv denied __NY3d__, 2011 NY Slip Op 74703 [2011]; DRK, LLC v Burlington Ins. Co., 74 AD3d 693, 694 [2010], lv denied 16 NY3d 702 [2011]).

There is no potential avenue for coverage under any other policy provision, including the "insured contract" exclusion contained elsewhere in the policy (see Ruge v Utica First Ins. Co., 32 AD3d 424, 426 [2006], lv denied 7 NY3d 716 [2006]). "Exclusions in policies of insurance must be read seriatim, not cumulatively, and if any one exclusion applies there can be no coverage, since no one exclusion can be regarded as inconsistent with another" (Monteleone v Crow Constr. Co., 242 AD2d 135, 140-141 [1998], lv denied 92 NY2d 818 [1998], quoting Zandri Constr. Co. v Firemen's Ins. Co. of Newark, 81 AD2d 106, 109 [1981], affd 54 NY2d 999, 1001 [1981]; see Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 471 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: September 28, 2011

20110928

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