BEHRENS v. CITY OF NEW YORK (2001)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 26, 1999, which granted the motion by fourth-party defendant National Union Fire Insurance Company of Pittsburgh, Pa. to dismiss the fourth-party complaint and denied the cross motion by fourth-party plaintiff General Track Corporation for a declaration that National Union is obliged to defend and indemnify it under the parties' policy of insurance, unanimously modified, on the law, to the extent of declaring that National Union is not obligated to defend or indemnify General Track Corporation with respect to the underlying claim, and otherwise affirmed, without costs.

 Having demonstrated that endorsement MS# 7 expressly bars coverage for liability stemming from the injury sustained by fourth-party plaintiff General Track Corporation's employee in the course of his employment, fourth-party defendant insurer National Union was properly found to be under no obligation to defend or indemnify General Track with respect to the claim of that employee.   The kind of exclusion here at issue is enforceable under New York law (see, Commissioners of the State Ins. Fund v. Ins. Co. of N. Am., 80 N.Y.2d 992, 592 N.Y.S.2d 648, 607 N.E.2d 795;  Monteleone v. Crow Constr. Co., 242 A.D.2d 135, 673 N.Y.S.2d 408, lv. denied 92 N.Y.2d 818, 684 N.Y.S.2d 489, 707 N.E.2d 444), and, indeed, this Court has previously granted summary judgment to National Union based upon an exclusion nearly identical to the one that is the subject of the present motion (see, id.).   Contrary to General Track's argument, the subject policy is not ambiguous by reason of the insurer's typographical error in referring in the subject endorsement to exclusion “J” instead of “E”. The error notwithstanding, the exclusionary import of the endorsement is clear and, indeed, “susceptible of only one interpretation” (Maurice Goldman & Sons, Inc. v. Hanover Ins. Co., 80 N.Y.2d 986, 987, 592 N.Y.S.2d 645, 607 N.E.2d 792).   We modify only to declare in National Union's favor (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670).

We have considered appellant General Track's remaining arguments and find them unavailing.