MT HAWLEY INSURANCE COMPANY v. AMERICAN STATES INSURANCE COMPANY (2019)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered December 20, 2017, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion for summary judgment declaring that defendant American States Insurance Company (American) is required to defend and indemnify plaintiffs 537 West 27th Street Owners LLC (West 27th) and Chatsworth Builders, LLC (Chatsworth) in an underlying action, and denied defendant American's cross motion for summary judgment, unanimously modified, on the law, to deny plaintiffs' motion to the extent it seeks a declaration that American has a duty to indemnify West 27th and Chatsworth, and otherwise affirmed, without costs.

In an underlying personal injury action, the injured plaintiff asserted negligence and Labor Law claims from injuries he sustained while he was working at a construction site owned by West 27th and for which Chatsworth was the general contractor.  Chatsworth and West 27th commenced a third-party action against the subcontractor, J & R Glassworks, Inc. a/k/a Walsh Glass & Metal Inc. (J & R), alleging negligence and seeking indemnification and contribution.

West 27th and Chatsworth tendered coverage to defendant American pursuant to a policy issued to J & R as named insured, claiming they were additional insureds under the policy.  Because there was a reasonable possibility of coverage, and the underlying personal injury action was filed while the American policy was in effect, American has a duty to defend West 27th and Chatsworth as additional insureds, and is legally obligated at this time to pay West 27th and Chatsworth's defense costs in the underlying action (see Indian Harbor Ins. Co. v. Alma Towers, LLC, 165 A.D.3d 549, 87 N.Y.S.3d 9 [1st Dept. 2018] ).

While the duty to defend is clear, issues of fact as to liability in the underlying personal injury action render premature the conclusion that American has a duty to indemnify West 27th and Chatsworth (Chunn v. New York City Hous. Auth., 55 A.D.3d 437, 866 N.Y.S.2d 145 [1st Dept. 2008];  see North Riv. Ins. Co. v. ECA Warehouse Corp., 172 A.D.2d 225, 568 N.Y.S.2d 71 [1st Dept. 1991] ).

We have considered defendant's remaining arguments and find them unavailing.