Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis
& Fishlinger, Uniondale, NY (Richard J. Nicolello of
counsel), for appellants.
Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, NY
(Steven Verveniotis and Michael Cataldo of counsel), for
WILLIAM F. MASTRO, J.P. RUTH C. BALKIN JEFFREY A. COHEN
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action for a judgment declaring that the defendant
Philadelphia Indemnity Insurance Company is obligated to
defend and indemnify the plaintiffs herein in an underlying
personal injury action entitled Brunsting v Chappaqua
Cent. Sch. Dist., commenced in the Supreme Court,
Westchester County, under Index No. 53598/11, the plaintiffs
appeal from an order of the Supreme Court, Nassau County
(Brown, J.), entered October 10, 2014, which granted the
motion of the defendant Philadelphia Indemnity Insurance
Company for summary judgment, in effect, declaring that it is
not obligated to defend and indemnify the plaintiffs in the
underlying action, and denied their cross motion for summary
judgment declaring that the defendant Philadelphia Indemnity
Insurance Company is so obligated.
that the order is affirmed, with costs, and the matter is
remitted to the Supreme Court, Nassau County, for the entry
of a judgment declaring that the defendant Philadelphia
Indemnity Insurance Company is not obligated to defend or
indemnify the plaintiffs in the underlying action.
defendant Patricia Brunsting was employed by the Chappaqua
Children's Workshop, Inc. (hereinafter CCW), which
operated a children's after-school program in the
cafeteria of the Robert E. Bell Middle School building
(hereinafter the school), which was owned by the plaintiff
Chappaqua Central School District (hereinafter CCSD). CCSD
leased the cafeteria to CCW for its after-school program
pursuant to a written agreement. In January 2011, Brunsting
allegedly was injured when she tripped and fell while
descending an exterior staircase that led from the school
down to its parking lot. CCW had a liability insurance policy
in effect with the defendant Philadelphia Indemnity Insurance
Company (hereinafter the PIIC policy). CCSD had a liability
insurance policy in effect with the New York Schools
Insurance Reciprocal (hereinafter the NYSIR policy).
Brunsting commenced an action against CCSD to recover damages
for personal injuries (hereinafter the underlying action).
NYSIR settled the underlying action for $200, 000.
was timely notified of the underlying action, but disclaimed
coverage to CCSD as an additional insured on the grounds that
Brunsting was not injured on the leased premises and because
CCW was not responsible for maintaining or repairing the
staircase. New York Schools Insurance Foundation and CCSD
commenced this action seeking a declaration that PIIC is
obligated to provide defense and indemnification in the
underlying action. PIIC moved for summary judgment, in
effect, declaring that it is not so obligated, and the
plaintiffs cross-moved for summary judgment declaring that
PIIC is obligated to defend and indemnify them in the
underlying action as an "additional insured" under
the PIIC policy. The PIIC policy had a provision providing
coverage for "Managers, Landlords, or Lessors of
Premises" for "liability arising out of the
ownership, maintenance or use of that part of the premises
leased or rented to you" (hereinafter the additional
insured provision). The plaintiffs contended that the
additional insured provision covered the underlying action
because the term "arising out of the use" was a
broad, comprehensive term, and because the staircase was
"necessarily used for access" to the leased
premises. PIIC countered that the accident was not covered by
the additional insured provision because it did not occur
within the leased premises, and because the staircase was not
"necessarily incidental" to the use of the leased
premises. The Supreme Court granted PIIC's motion and
denied the plaintiffs' cross motion. We affirm.
insurer's duty to defend is "exceedingly broad"
(Colon v Aetna Life & Cas. Ins. Co., 66 N.Y.2d
6, 8; see Regal Constr. Corp. v National Union Free Ins.
Co. of Pittsburgh, PA, 15 N.Y.3d 34, 37; Mack-Cali
Realty Corp. v NGM Ins. Co., 119 A.D.3d 905, 906). An
additional insured is entitled to the same coverage as if it
were a named insured (see BP A.C. Corp. v One Beacon Ins.
Group, 8 N.Y.3d 708, 714-715; Pecker Iron Works of
N.Y. v Traveler's Ins. Co., 99 N.Y.2d 391, 393).
"If any of the claims against an insured arguably arise
from covered events, the insurer is required to defend the
entire action" (Frank v Continental Cas. Co.,
123 A.D.3d 878, 881; see Fieldston Prop. Owners Assn.,
Inc. v Hermitage Ins. Co., Inc., 16 N.Y.3d 257, 264).
The phrase "arising out of" requires "only
that there be some causal relationship between the injury and
the risk for which coverage is provided" (Mack-Cali
Realty Corp. v NGM Ins. Co., 119 A.D.3d at 906-907
[internal quotation marks omitted]; see Worth Constr.
Co., Inc. v Admiral Ins. Co., 10 N.Y.3d 411, 415). Yet
"[a]n insurer does not wish to be liable for losses
arising from risks associated with... premises for which the
insurer has not evaluated the risk and received a
premium" (Maroney v New York Cent. Mut. Fire Ins.
Co., 5 N.Y.3d 467, 472). Moreover, "unambiguous
provisions of an insurance contract must be given their plain
and ordinary meaning" (White v Continental Cas.
Co., 9 N.Y.3d 264, 267; see ABM Mgmt. Corp. v
Harleysville Worcester Ins. Co., 112 A.D.3d 763, 764).
The interpretation of policy language is a question of law
for the court (see White v Continental Cas. Co., 9
N.Y.3d at 267; ABM Mgmt. Corp. v Harleysville Worcester
Ins. Co., 112 A.D.3d at 764).
established, prima facie, that it was entitled to summary
judgment declaring that it is not obligated to defend and
indemnify the plaintiffs in the underlying action. The
additional insured provision unambiguously provided that CCSD
was an additional insured, as a "Lessor, " for
liability "arising out of" the "ownership,
maintenance or use" of the "premises leased"
to CCW, namely, the cafeteria. It is undisputed that CCW
leased only the cafeteria from CCSD, and that CCW had no duty
to maintain or repair the staircase where the accident
occurred. There was no causal relationship between the injury
and the risk for which coverage is provided (see Regal
Constr. Corp. National Union Fire Ins. Co. of Pittsburgh,
PA, 15 N.Y.3d at 38; Christ the King Regional High
School v Zurich Ins. Co. of N. Am., 91 A.D.3d 806, 809).
Accordingly, Brunsting's injury was not a bargained-for
risk (see Maroney v New York Cent. Mut. Fire Ins.
Co., 5 N.Y.3d at 473).
opposition, the plaintiffs failed to raise a triable issue of
fact as to whether there was any causal relationship between
the accident and the risk for which coverage was provided
(see Christ the King Regional High School v Zurich Ins.
Co. of N. Am., 91 A.D.3d at 808).
the Supreme Court properly granted PIIC's motion and
denied the plaintiffs' cross motion.
this is a declaratory judgment action, the matter must be
remitted to the Supreme Court, Nassau County, for the entry
of a judgment declaring that PIIC is not obligated to defend
and indemnify the plaintiffs ...