WESCO INSURANCE COMPANY v. Insidesquad, Inc., et al., Defendants. (2024)

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about April 6, 2023, which, to the extent appealed from as limited by the briefs, granted plaintiff Wesco Insurance Company's (Wesco) motion for partial summary judgment dismissing defendant Mt. Hawley Insurance Company's (Mt. Hawley) third affirmative defense declaring that a specified exclusion in Mt. Hawley's insurance policy did not relieve Mt. Hawley of the duty to indemnify defendants Insidesquad, Inc. or River Tower Owner, LLC in an underlying action, and denied Mt. Hawley's cross-motion for partial summary judgment declaring the validity of Mt. Hawley's disclaimer of coverage in that underlying action, unanimously affirmed, without costs.

Supreme Court properly found that the provision in Mt. Hawley's insurance policy excluding from coverage “[e]xterior work above ground level” does not apply.  The plaintiff in the underlying action, an employee of Insidesquad, Inc., alleges he was injured when he fell while standing on a ladder set up on the ground level outside the subject building.

As a matter of “common speech” (Matter of E. 51st St. Crane Collapse Litig., 84 A.D.3d 512, 513, 923 N.Y.S.2d 64 [1st Dept. 2011]), “ground level” is reasonably interpreted to mean the first floor.  Mt. Hawley has failed to satisfy its burden of establishing that “ground level” as used in the exclusion can only reasonably mean that the covered work must be performed on the ground itself (Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 311, 486 N.Y.S.2d 873, 476 N.E.2d 272 [1984]).  Exclusions “are not to be extended by interpretation or implication, but are to be accorded a strict and narrow construction” (id.).

We have considered Mt. Hawley's remaining contentions and find them unavailing.