IBEX CONSTRUCTION LLC v. UTICA NATIONAL ASSURANCE COMPANY (2008)

Order, Supreme Court, New York County (Louis B. York, J.), entered February 27, 2008, which denied plaintiffs' motion for summary judgment declaring that defendant was obligated to defend and indemnify plaintiff IBEX Construction in the underlying personal injury action, and denied defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant plaintiffs' motion, and otherwise affirmed, without costs.

The allegations in the personal injury complaint, and the subsequent trial thereof, make clear that the plaintiff in the underlying action claimed he fell from an improperly secured ladder provided by his employer, defendant's insured and a subcontractor of IBEX. In a post-trial appeal, this Court held that IBEX was liable to the employee, pursuant to Labor Law § 240(1) (see Bradley v. IBEX Constr., LLC, 54 A.D.3d 626, 627, 865 N.Y.S.2d 32 [2008] ).   Thus, IBEX is an additional insured as defined by the policy, i.e., one “held liable for [the insured's] acts or omissions arising out of ․ ongoing operations performed by [the insured] or [its] subcontractors” (see BP A.C. Corp. v. One Beacon Ins. Group, 8 N.Y.3d 708, 714, 840 N.Y.S.2d 302, 871 N.E.2d 1128 [2007] ).   Defendant's duty to defend IBEX was triggered by the allegations in the underlying complaint, which brought the claims potentially within the scope of coverage (id.).