WHITE v. Rudolph Ehrenwald, Inc., Defendant. (1997)

Order, Supreme Court, New York County (Ira Gammerman, J.), entered November 26, 1996, which granted defendants-respondents' motion for summary judgment dismissing the complaint as against them, and denied plaintiff insurer's cross motion for partial summary judgment as to liability, unanimously modified, on the law, to reinstate the complaint as against the corporate defendant Aron Kaufman & Company, and otherwise affirmed, without costs.

 There was no ambiguity in the actual policy with respect to the named insureds.   Kaufman & Co. was not an additional insured under the policy, and the IAS court's reliance on the “COVER LETTER” from the broker as the basis for that conclusion was misplaced.   The court cannot create coverage where none exists by virtue of the fact that Kaufman & Co. had an insurable interest in the stone and/or the anticipated finished products (see, Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d 27, 418 N.Y.S.2d 76, affd. 49 N.Y.2d 924, 428 N.Y.S.2d 675, 406 N.E.2d 490).   Accordingly, the antisubrogation rule does not avail Kaufman & Co.   On the merits, an issue of fact exists as to whether the damage to the stone was caused by Kaufman & Co.'s negligent performance of its alleged contract to process the stone, precluding summary judgment in favor of or against that insured (see, Rosenbaum v. Branster Realty Corp., 276 A.D. 167, 168, 93 N.Y.S.2d 209).  However, the complaint was properly dismissed as against the individual Kaufman defendants, there being nothing in the record to support an inference that they agreed to manufacture, process or accept delivery of the stone in their individual capacities.

The Decision and Order of this Court entered herein on June 24, 1997 is hereby recalled and vacated.   See M-4178 decided simultaneously herewith.

MEMORANDUM DECISION.