New York Supreme and/or Appellate Courts Appellate Division, First Department
March 5, 2013
THE CITY OF NEW YORK,
NOVA CASUALTY COMPANY, ET AL.
DEFENDANTS. NOVA CASUALTY COMPANY,
THIRD-PARTY PLAINTIFF- RESPONDENT,
HARLEYSVILLE WORCHESTER INSURANCE COMPANY,
THIRD-PARTY DEFENDANT- APPELLANT.
City of New York v Nova Cas. Co.
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.
Decided on March 5, 2013 Gonzalez, P.J., Mazzarelli, Renwick, Richter, Gische, JJ.
Order and judgment (one paper), Supreme Court, New York County (Barbara Jaffe, J.), entered October 5, 2011, to the extent appealed from, declaring that third-party defendant Harleysville Worchester Insurance Company is obligated to defend the City of New York in an underlying personal injury action under a policy it issued to nonparty Bruno Grgas, Inc., and order and judgment (one paper), same court and Justice, entered May 1, 2012, upon reargument, to the extent appealed from, declaring that Harleysville is obligated to defend the City under both the Grgas policy and a policy it issued to nonparty Coastal Sheet Metal Corp., unanimously reversed, on the law, without costs, and it is declared that Harleysville has no obligation to defend the City under either policy.
The terms of the additional insurance clauses in the Harleysville policies require that the insured and the organization seeking coverage have agreed in writing that the insured will add the organization as an additional insured. The record contains no such freestanding agreement between the City and either Grgas or Coastal. The language in Grgas's and Coastal's subcontracts incorporating by reference the terms of the prime contract, which required the contractor to add the City as an additional insured under its policies, is insufficient to create that obligation (see e.g. AB Green Gansevoort, LLC v Peter Scalamandre & Sons., Inc., ___ AD3d ___, 2013 NY Slip Op 00031 [1st Dept January 8, 2013]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 5, 2013
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