& Milner LLP, New York, NY (Michael M. Milner of
counsel), for appellant.
G. Sawyers, Melville, NY (Scott W. Driver of counsel), for
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action, inter alia, for declaratory relief, the defendant
Seneca Insurance Company, Inc., appeals from an order of the
Supreme Court, Queens County (Frederick D.R. Sampson, J.),
entered December 1, 2015. The order granted the
plaintiff's motion for summary judgment declaring that
the defendant Seneca Insurance Company, Inc., is obligated to
defend and indemnify the plaintiff in the underlying action.
that the order is affirmed, with costs, and the matter is
remitted to the Supreme Court, Queens County, for the entry
of a judgment, inter alia, declaring that the defendant
Seneca Insurance Company, Inc., is obligated to defend and
indemnify the plaintiff in the underlying action.
plaintiff (hereinafter the landlord) was the owner of certain
real property located in Queens County (hereinafter the
subject property) that included a building that was used as a
commercial warehouse. The landlord leased a portion of the
subject property to the defendant Eshipper USA Corporation
(hereinafter Eshipper). Under the terms of the lease,
Eshipper was obligated to obtain certain insurance coverage
for the landlord. Eshipper obtained a commercial general
liability policy (hereinafter the subject policy) from the
defendant Seneca Insurance Company, Inc. (hereinafter
Seneca), which named the landlord as an additional insured.
the course of Eshipper's tenancy, the defendant Sanjay
Bharsakal was allegedly injured while he was walking on the
subject property. Bharsakal alleged that the accident
occurred when he slipped and fell on snow and ice while he
was walking toward a door to the warehouse after parking his
truck in a parking lot located on the subject property.
commenced a personal injury action (hereinafter the
underlying action) against the landlord and others. The
landlord, in turn, commenced this action against, among
others, Seneca. The landlord alleged that it was named as an
additional insured on the subject policy. The landlord
sought, inter alia, a declaration that Seneca was obligated
to defend and indemnify it in the underlying action.
joinder of issue, the landlord moved for summary judgment
declaring that Seneca is obligated to defend and indemnify it
in the underlying action. Seneca opposed the landlord's
motion, arguing, among other things, that the additional
insured provision of the subject policy was not triggered
because the alleged accident did not occur on the portion of
the subject property that had been leased to Eshipper. In an
order entered December 1, 2015, the Supreme Court granted the
landlord's motion. Seneca appeals, and we affirm.
duty to defend is triggered by the allegations contained in
the underlying complaint" (BP A.C. Corp. v One
Beacon Ins. Group, 8 N.Y.3d 708, 714; see Cumberland
Farms, Inc. v Tower Group, Inc., 137 A.D.3d 1068, 1070).
"[A]n insurer's duty to defend its insured arises
whenever the allegations in a complaint state a cause of
action that gives rise to the reasonable possibility of
recovery under the policy" (Fitzpatrick v American
Honda Motor Co., 78 N.Y.2d 61, 65; see BP A.C. Corp.
v One Beacon Ins. Group, 8 N.Y.3d at 714). "If the
allegations of the complaint are even potentially within the
language of the insurance policy, there is a duty to
defend" (Town of Massena v Healthcare Underwriters
Mut. Ins. Co., 98 N.Y.2d 435, 443).
immaterial that "the complaint against the insured
asserts additional claims which fall outside the policy's
general coverage or within its exclusory provisions"
(Seaboard Sur. Co. v Gillette Co., 64 N.Y.2d 304,
310). "If any of the claims against the insured arguably
arise from covered events, the insurer is required to defend
the entire action" (Frontier Insulation Contrs. v
Merchants Mut. Ins. Co., 91 N.Y.2d 169, 175). The duty
remains "even though facts outside the four corners of
[the] pleadings indicate that the claim may be meritless or
not covered" (Fitzpatrick v American Honda Motor
Co., 78 N.Y.2d at 63; see Automobile Ins. Co. of
Hartford v Cook, 7 N.Y.3d 131, 137).
insurer's duty to defend is exceedingly broad"
(Colon v Aetna Life & Cas. Ins. Co., 66 N.Y.2d
6, 8; see Continental Cas. Co. v Rapid-American
Corp., 80 N.Y.2d 640, 648). When a policy represents
that it will provide the insured with a defense, the Court of
Appeals has said that such a policy "actually
constitutes litigation insurance' in addition to
liability coverage" (Automobile Ins. Co. of Hartford
v Cook, 7 N.Y.3d at 137; see Seaboard Sur. Co. v
Gillette Co., 64 N.Y.2d at 310; International Paper
Co. v Continental Cas. Co., 35 N.Y.2d 322, 326-327).
Accordingly, "an insurer may be contractually bound to
defend even though it may not ultimately be bound to pay,
either because its insured is not factually or legally liable
or because the occurrence is later proven to be outside the
policy's coverage" (Fitzpatrick v American Honda
Motor Co., 78 N.Y.2d at 65; see BP A.C. Corp. v One
Beacon Ins. Group, 8 N.Y.3d at 714; Automobile Ins.
Co. of Hartford v Cook, 7 N.Y.3d at 137; Seaboard
Sur. Co. v Gillette Co., 64 N.Y.2d at 310).
insurance company's duty to defend is broader than its
duty to indemnify" (Automobile Ins. Co. of Hartford
v Cook, 7 N.Y.3d at 137). As a general matter, an
insurance company will have a duty to indemnify an insured
party when the underlying occurrence falls within the scope
of coverage afforded by the particular insurance policy at
issue (see e.g. Greenwich Ins. Co. v City of New
York, 139 A.D.3d 615, 616; Stout v 1 E. 66th St.
Corp., 90 A.D.3d 898, 903; Lehrer McGovern Bovis v
Halsey Constr. Corp., 254 A.D.2d 335, 335-336).
Accordingly, even where a duty to defend has been
established, there may still be a triable issue of fact as to
whether the underlying occurrence was actually within the
scope of coverage afforded by the particular policy at issue
(see Greenwich Ins. Co. v City of New York, 139
A.D.3d at 616). "The scope of coverage under a general
liability insurance policy is defined largely, if not
exclusively, by the express grant of coverage contained in
the policy" (1-15 New Appleman New York Insurance Law
§ 15.04[a]; see generally Worth Constr. Co., Inc.
v Admiral Ins. Co., 10 N.Y.3d 411, 415; Automobile
Ins. Co. of Hartford v Cook, 7 N.Y.3d at 137-138).
the subject policy named the landlord 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 [Eshipper]." The Court of Appeals has
stated that "the phrase arising out of'... requires
only that there be some causal relationship between the
injury and the risk for which coverage is provided"
(Maroney v New York Cent. Mut. Fire Ins. Co., 5