October 11, 2013
85 KENMARE REALTY CORP. and NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Plaintiffs,
I AM MALIA MILLS and TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Defendants. Index No. 100290/2012
Hon Doris Ling-Cohan, J.S.C.
In this dispute over insurance coverage, plaintiffs 85 Kenmare Realty Corp. (85 Kenmare) and National Union Fire Insurance Company of Pittsburgh, Pa. (National) move, pursuant to CPLR 3212, for summary judgment, and, pursuant to CPLR 3001, for a declaration that defendant Charter Oak Fire Insurance Company, sued herein as Travelers Property Casualty Company of America; (Travelers/Charter Oak), is obligated to provide a defense to. 85 Kenmare in an underlying personal injury action.
Travelers/Charter Oak cross-moves for summary judgment dismissing the complaint.
85 Kenmare is the owner of a building located at 197 and; 199 Mulberry Street in Manhattan. 85 Kenmare leased the ground floor of 199 Mulberry Street to defendant I Am Malia Mills, LLC (I Am Malia), where I Am Malia operated a shop (premises). The lease required I Am Malia to add 85 Kenmare to a general liability-policy as an additional insured.
I Am Malia obtained a liability policy with Travelers/Charter Oak (policy). Aff. in Support of Motion, Policy, Ex. E. The policy contained an endorsement entitled: "Blanket Additional Insured-Mangers or Lessors of Premises, " which reads as follows:
Who is an insured (Section II) is amended to include as j an insured any person or organization (referred to below as "additional insured") with whom you have agreed in a written contract, executed prior to loss, to name as an additional insured, but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you ... .
On April 23, 2010, an incident occurred in which Kathryn Ann Perkins (Perkins) tripped and fell on the sidewalk at or near the outside of the premises, and sustained personal injuries. Perkins, along with her husband, Frank Perkins, instituted a lawsuit in this court against, among others, 85 Kenmare, I Ami Malia, and Sheryl Lee, Inc., doing business as BAG (BAG), the shop located next door to the premises, at 197 Mulberry Street. See Perkins v 85 Kenmare Realty Corp., Index No. 102502/11 (underlying action). The bill of particulars in the underlying action alleges that Perkins fell "at or about a raised walkway abutting premises known as 197-199 Mulberry Street ... " (Aff. in Support of Motion, Ex. B), implicating both stores.
Travelers/Charter Oak is defending I Am Malia in the underlying action.
85 Kenmare tendered a demand on Travelers/Charter Oak to defend it in the underlying action, as an additional insured under the policy. Travelers/Charter Oak disclaimed, on the ground that the accident did not arise out of the "ownership, maintenance or use" of the premises, since, in so far as the; accident may be found to have occurred in front of I Am Malia, and not BAG, the accident took place on the sidewalk outside I Am Malia, which is not part of the leased space, i.e., inside the building.
"Where the terms of an insurance policy are clear and unambiguous, interpretation of those terms is a matter of law| for the court." Town of Harrison v National Union Fire Insurance] Company of Pittsburgh, Pa., 89 N.Y.2d 308, 316 (1996). "An insurer is entitled to have its contract of insurance enforced in accordance with its provisions and without a construction contrary to its express terms." Bretton v Mutual of Omaha Insurance Co., 110 A.D.2d 46, 49 (1st Dept), affd 66 N.Y.2d 1020 (1985).
In ZKZ Associates v CNA Insurance Co. (89 N.Y.2d 990 ), the Court of Appeals, in reviewing a trip and fall accident which occurred on the sidewalk in front to a garage, which was leased to a tenant having insurance adding the owner as an additional insured, found that the sidewalk was part of the insured premises "by implication" because that part of the sidewalk was i "necessarily used for access in and out of the garage ... .": Id. at 991. Consequently, the claim was found to have arisen out of the "ownership, maintenance (or) use" of the premises, and so, was covered by the policy. Id.
ZKZ Associates has since been cited to provide coverage for an additional insured owner, where a trip and fall accident occurred on the sidewalk in front of leased premises "necessarily used for access in and out" of the premises. Stein v 1349 Housing Corp., 31 Misc.3d 1224(A), *11, 2011 NY Slip Op 50813J(U) (Sup Ct, NY County 2011). In Stein, the policy expressly stated that "ownership, maintenance or use" of premises, included "operations necessary or incidental to those premises." Id.  However, this language merely mirrors the finding in ZKZ Associates, that a sidewalk used for access to and from a premises is "necessarily used" for that purpose. See also Dewars Management Co., Inc. v Great Northern Insurance Co., 2001 NY Slip Op 40254(U), * 3 (App Term, 1st Dept 2001)(sidewalk in front of leased premises "necessarily used for access" to the premises, and "any liability based on a sidewalk defect necessarily arose out of the 'use' of the demised premises and comes within the; additional insureds' coverage" [quoting ZKZ Associates 89 N.Y.2d at 991]).
In accordance with the foregoing case law, as to the subject accident, if it is proven to have occurred on I Am Malia's sidewalk, then the accident occurred on the insured's premises; since the sidewalk is necessarily used for access to and from I Am Malia's shop. Therefore, Travelers/Charter Oak is obligated to defend 85 Kenmare in the underlying action. Travelers/Chairter Oak is also obligated to reimburse National for its costs in defending 85 Kenmare in the underlying action.
Accordingly, it is
ORDERED that the motion by plaintiffs 85 Kenmare Realty: Corp. and National Union Fire Insurance Company of Pittsburgh, Pa. for summary judgment is granted; and it is further
ORDERED that the cross-motion by defendant Charter Oak Fire Insurance Company, sued herein as Travelers Property Casualty Company of America, is denied; and is further
ORDERED and ADJUDGED that defendant Charter Oak Fire Insurance Company, sued herein as Travelers Property Casualty Company of America, is obligated to provide a defense to 85 Kenmare Realty Corp. in the action entitled Perkins v 85 Kenmare Realty Corp., Index No. 102502/11, pending in this court; and it is further
ORDERED and ADJUDGED that defendant Charter Oak Fire Insurance Company, sued herein as Travelers Property Casualty Company of America, is obligated to reimburse plaintiff National Union Fire Insurance Company of Pittsburgh, Pa., for attorneys' fees, expenses and disbursements expended in the defense of the action Perkins v 85 Kenmare Realty Corp., Index No. 102502/11; and it is further
ORDERED that with respect to the issue of legal fees/costs, within 30 days of entry of this decision/order/judgment, plaintiff National Union Fire Insurance Company of Pittsburgh, Pa. are directed to submit an accounting of the fees/costs incurred, to defendant Charter Oak Fire Insurance Company, sued herein as Travelers Property Casualty Company of America, and such defendant is directed to review the accounting, and should defendant agree with such fees/costs, satisfy such defense fees/costs incurred by plaintiff National Union Fire Insurance Company of Pittsburgh, Pa., within 30 days from receipt of the accounting, or provide specific reasons for its disagreement within such time (such objections shall be specifically directed to each item billed, with detailed reasons for the objection);! and it is further
ORDERED that, after following the above procedure with respect to attorneys' fees, and conferring in person or by telephone, should the parties be unable to resolve the issue of the amount of attorneys' fees owed to plaintiff National Union Fire Insurance Company of Pittsburgh, Pa. for the defense of|the action Perkins v 85 Kenmare Realty Corp., Index No. 102502/11, such issue is respectfully referred to a Special Referee to hear and determine, in accordance with CPLR §4317(b); and it is further
ORDERED that counsel for the party seeking the reference, or, absent such party, counsel for the plaintiff shall, within 90 days from the date of this order, serve a copy of this order with notice of entry, together with a completed Information Sheet,  upon the Special Referee Clerk in the Motion Support Office, Rm. 119 at 60 Centre Street, who is directed to place the matter on the calendar of the Special Referee's Part (Part 50 R) for the earliest convenient date.