SCHOOL CONSTRUCTION CONSULTANTS INC v. Arch Specialty Insurance Company, third-party defendants-respondents. (2009)

In an action, inter alia, for a judgment declaring that the defendants third-party plaintiffs ARA Plumbing & Heating Corp. and QBE Insurance Corporation are obligated to defend and indemnify the plaintiff in an action entitled Uzzi v. Sachem Central School District, pending in the Supreme Court, Suffolk County, under Index No. 04/26703, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Suffolk County (Costello, J.), dated May 20, 2008, which granted the motion of the third-party defendants pursuant to CPLR 3211(a)(1) to dismiss the third-party complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was to dismiss the fourth cause of action of the third-party complaint, and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

Contrary to the contention of the defendants third-party plaintiffs ARA Plumbing & Heating Corp. (hereinafter ARA) and QBE Insurance Corporation (hereinafter QBE), the Supreme Court properly granted those branches of the motion of the third-party defendants Arch Specialty Insurance Company (hereinafter Arch) and Federal Sprinkler Corp. (hereinafter Federal) pursuant to CPLR 3211(a)(1) which were to dismiss the first, second, and third causes of action of the third-party complaint based on documentary evidence.   The documents submitted by Arch and Federal in support of the motion, consisting of the subcontract between ARA and Federal and the liability insurance policy issued by Arch pursuant thereto, sustained the movants' burden of conclusively establishing a defense to those causes of action (see generally Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Fortis Fin. Servs. v. Fimat Futures USA, 290 A.D.2d 383, 737 N.Y.S.2d 40;  Scadura v. Robillard, 256 A.D.2d 567, 683 N.Y.S.2d 108), by demonstrating that Arch and Federal were neither contractually obligated to provide insurance coverage to the plaintiff nor in fact provided such coverage (see e.g. Sixty Sutton Corp. v. Illinois Union Ins. Co., 34 A.D.3d 386, 388, 825 N.Y.S.2d 46;  Tribeca Broadway Assoc. v. Mount Vernon Fire Ins. Co., 5 A.D.3d 198, 200, 774 N.Y.S.2d 11).   In this regard, the certificate of insurance listing the plaintiff as an additional insured was insufficient to alter the language of the policy itself, especially since the certificate recited that it was for informational purposes only, that it conferred no rights upon the holder, and that it did not amend, alter, or extend the coverage afforded by the policy (see Illinois Natl. Ins. Co. v. American Alternative Ins. Corp., 58 A.D.3d 537, 538, 872 N.Y.S.2d 26;  Home Depot U.S.A., Inc. v. National Fire & Mar. Ins. Co., 55 A.D.3d 671, 673, 866 N.Y.S.2d 255;  ALIB, Inc. v. Atlantic Cas. Ins. Co., 52 A.D.3d 419, 861 N.Y.S.2d 28;  Nicotra Group, LLC v. American Safety Indem. Co., 48 A.D.3d 253, 254, 850 N.Y.S.2d 455;  Metropolitan Heat & Power Co. Inc. v. AIG Claims Servs. Inc., 47 A.D.3d 621, 850 N.Y.S.2d 142;  International Couriers Corp. v. North Riv. Ins. Co., 44 A.D.3d 568, 569, 844 N.Y.S.2d 253;  Moleon v. Kreisler Borg Florman Gen. Constr. Co., 304 A.D.2d 337, 339, 758 N.Y.S.2d 621).

However, the fourth cause of action of the third-party complaint does not concern the procurement of appropriate liability coverage, but instead seeks contractual indemnification for ARA based upon an independent “hold harmless” provision in its subcontract with Federal.   Since the motion by Arch and Federal did not specifically address this cause of action, and the documents they submitted did not conclusively demonstrate that it should be dismissed, the Supreme Court erred in granting the motion to this extent.