GLYNN v. UNITED HOUSE OF PRAYER (2002)

Supreme Court, Appellate Division, First Department, New York.

Patrick GLYNN, et al., Plaintiffs, v. UNITED HOUSE OF PRAYER for All People, et al., Defendants. (Action No. 1.)
[And A Third-Party Action]. United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Second Third-Party Plaintiff-Appellant, v. Allcity Insurance Company, et al., Second Third-Party Defendants-Respondents.
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Third Third-Party Plaintiff-Appellant, v. RBL Associates, Inc., Third Third-Party Defendant-Respondent.
[And A Fourth Third-Party Action]. Marjorie Lopez, etc., Plaintiff, v. United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, et al., Defendants. (Action No. 2.) [And A Third-Party Action].
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Second Third-Party Plaintiff-Appellant, Hubert Swaringer, Second Third-Party Plaintiff, v. Allcity Insurance Company, et al., Second Third-Party Defendants-Respondents.
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Third Third-Party Plaintiff-Appellant, Hubert Swaringer, Third Third-Party Plaintiff, v. RBL Associates, Inc., Third Third-Party Defendant-Respondent.
[And A Fourth Third-Party Action]. Illya Brunner, etc., et al., Plaintiffs, v. The United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, et al., Defendants. (Action No. 3.)
[And A Third-Party Action]. United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Second Third-Party Plaintiff-Appellant, v. Allcity Insurance Company, et al., Second Third-Party Defendants-Respondents.
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Third Third-Party Plaintiff-Appellant, v. RBL Associates, Inc., Third-Third Party Defendant-Respondent.
[And A Fourth Third-Party Action]. Jose Ramos, etc., Plaintiff, v. Fred A. Harari, et al., Defendants. (Action No. 4.)
[And A Third-Party Action]. United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Second Third-Party Plaintiff-Appellant, v. Allcity Insurance Company, et al., Second Third-Party Defendants-Respondents.
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Third Third-Party Plaintiff-Appellant, v. RBL Associates, Inc., Third Third-Party Defendant-Respondent.
[And A Fourth Third-Party Action]. Oscar Marrero, Jr., etc., Plaintiff, v. The United House of Prayer for All People, Church on the Rock of the Apostolic Faith, et al., Defendants. (Action No. 5.)
[And A Third-Party Action]. United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Second Third-Party Plaintiff-Appellant, v. Allcity Insurance Company, et al., Second Third-Party Defendants-Respondents.
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Third Third-Party Plaintiff-Appellant, v. RBL Associates, Inc., Third Third-Party Defendant-Respondent.
[And A Fourth Third-Party Action]. Isardeen Chaitram, Plaintiff, v. The City of New York, et al., Defendants. (Action No. 6.)
[And A Third-Party Action]. United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Second Third-Party Plaintiff-Appellant, v. Allcity Insurance Company, et al., Second Third-Party Defendants-Respondents.
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Third Third-Party Plaintiff-Appellant, v. RBL Associates, Inc., Third Third-Party Defendant-Respondent.
[And A Fourth Third-Party Action]. Lydia Jimenez, etc., Plaintiff, v. LMA International Ltd., et al., Defendants. (Action No. 7.)
[And A Third-Party Action]. United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Second Third-Party Plaintiff-Appellant, v. Allcity Insurance Company, et al., Second Third-Party Defendants-Respondents.
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Third Third-Party Plaintiff-Appellant, v. RBL Associates, Inc., Third-Third Party Defendant-Respondent.
[And A Fourth Third-Party Action]. Alan Grossberg, et al., Plaintiffs, v. City of New York, et al., Defendants. (Action No. 9.) [And A Third-Party Action].
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Second Third-Party Plaintiff-Appellant, Hubert Swaringer, Second Third-Party Plaintiff, v. Allcity Insurance Company, et al., Second Third-Party Defendants-Respondents.
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Third Third-Party Plaintiff-Appellant, Hubert Swaringer, Third Third-Party Plaintiff, v. RBL Associates, Inc., Third Third-Party Defendant-Respondent.
[And A Fourth Third-Party Action]. Patricia Ramautar, etc., Plaintiff, v. The City of New York, et al., Defendants. (Action No. 12.) [And A Third-Party Action].
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Second Third-Party Plaintiff-Appellant, Hubert Swaringer, Second Third-Party Plaintiff, v. Allcity Insurance Company, et al., Second Third-Party Defendants-Respondents.
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Third Third-Party Plaintiff-Appellant, Hubert Swaringer, Third Third-Party Plaintiff, v. RBL Associates, Inc., Third Third-Party Defendant-Respondent.
[And A Fourth Third-Party Action]. Jacques Douek, Plaintiff, v. The United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, et al., Defendants. (Action No. 14.)
[And A Third-Party Action]. United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Second Third-Party Plaintiff-Appellant, v. Allcity Insurance Company, et al., Second Third-Party Defendants-Respondents.
United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Third Third-Party Plaintiff-Appellant, v. RBL Associates, Inc., Third Third-Party Defendant-Respondent. [And A Fourth Third-Party Action].

Decided: March 28, 2002

MAZZARELLI, J.P., ANDRIAS, WALLACH, RUBIN and MARLOW, JJ.

Eric S. Connuck, for United House of Prayer for all People of the Church on the Rock of the Apostolic Faith. David H. Paige, Elbert F. Nasis, for Allcity Insurance Company. Thomas M. Bona, P.C., James C. Miller for Insurance Corp. of N.Y. and National Casualty Company. David F. Tavella, for RBL Associates, Inc.

Orders, Supreme Court, Bronx County (Stanley Green, J.), entered on or about February 16, 2001 and April 2, 2001, and judgments (10 papers), same court and Justice, entered, respectively, in New York County on May 9, 2001 (action number 1), Bronx County on May 31, 2001 (action number 2), Bronx County on May 30, 2001 (action number 3), Bronx County on May 31, 2001 (action number 4), Bronx County on May 30, 2001 (action number 5), New York County on May 9, 2001 (action number 6), Bronx County on March 26, 2001 (action number 7), New York County on May 9, 2001 (action number 9), New York County on May 9, 2001 (action number 12), and New York County on May 9, 2001 (action number 14), which, inter alia, granted the motions of third-party defendants Allcity Insurance Company, Insurance Corporation of New York f/k/a Reinsurance Corporation of New York (Inscorp), National Casualty Corporation of New York (National), and RBL Associates, Inc. (RBL) for summary judgment, and dismissed the second and third third-party complaints against them in the above-captioned actions numbered 1, 2, 3, 4, 5, 6, 7, 9, 12 and 14, unanimously modified, on the law, to declare in third-party defendant insurers' favor that they are not obligated to defend or indemnify defendant third-party plaintiff United House of Prayer (UHP) in main actions numbered 1, 2, 3, 4, 5, 6, 7, 9, 12 and 14 arising out of the December 8, 1995 incident, and otherwise affirmed, without costs.

Plaintiffs in the above actions sue to recover for harm sustained by them and their decedents in a fire which occurred on December 8, 1995 on premises owned by defendant UHP. UHP has, in turn, commenced third-party actions against third-party defendant insurers and third-party defendant broker RBL, seeking, inter alia, declarations that third-party defendant insurers are obligated to defend and indemnify UHP in the main actions.

Third-party defendant insurers Inscorp and National were entitled to summary judgment dismissing the third-party complaints as against them in light of their submission of unrefuted evidence demonstrating that UHP was not named as an additional insured on the general and excess liability insurance policies issued by them, respectively, to UHP's general contractor, L.M.A. International, Inc. (LMA). While UHP was presented with a certificate of insurance by LMA's broker, RBL Associates, Inc., a certificate of insurance, by itself, is insufficient to raise a factual issue as to the existence of coverage (see, Am. Motorist Ins. Co. v. Superior Acoustics Inc., 277 A.D.2d 97, 716 N.Y.S.2d 389; St. George v. W.J. Barney Corp., 270 A.D.2d 171, 706 N.Y.S.2d 24), particularly where, as here, the policy itself makes no provision for coverage (see, Buccini v. 1568 Broadway Assocs., 250 A.D.2d 466, 673 N.Y.S.2d 398; Am. Ref-Fuel Co. of Hempstead v. Resource Recycling, Inc., 248 A.D.2d 420, 423, 671 N.Y.S.2d 93).

Summary judgment was also properly granted to the broker, RBL, dismissing UHP's claim against it for negligent misrepresentation in the third third-party actions, since RBL, having had no contractual relationship with UHP, and not having otherwise been in privity with it, was under no duty to UHP that might serve as a predicate for UHP's claim (see, St. George v. W.J. Barney Corp., 270 A.D.2d 171, 172, 706 N.Y.S.2d 24; Am. Ref--Fuel Co. of Hempstead, 248 A.D.2d, supra, at 424, 671 N.Y.S.2d 93).

Finally, the motion court properly held that although UHP was named as an additional insured in the liability policy issued by third-party defendant Allcity Insurance Company, the additional insured endorsement in the Allcity policy clearly limited the coverage afforded UHP to liability arising from work performed by the named insured on UHP's behalf. Therefore, the court correctly concluded that UHP was not covered under the Allcity policy for the liability alleged against it in the main actions; it is plain as a matter of law that the renovation work from which UHP's liability is alleged to have arisen was not performed on UHP's behalf, but rather on behalf of the named insured (cf., Consolidated Edison Co. of New York v. United States Fid. and Guar. Co., 263 A.D.2d 380, 382, 693 N.Y.S.2d 31; County of Orange v. Hartford Acc. & Indem. Corp., 226 A.D.2d 578, 579, 641 N.Y.S.2d 118).

We modify only to declare in third-party defendant insurers' favor that they are not obligated to defend or indemnify UHP in the main actions (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's remaining arguments and find them unavailing.

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