BERKLEY INSURANCE COMPANY v. FARM FAMILY INSURANCE COMPANY (2026)

DECISION & ORDER

In an action, inter alia, for a judgment declaring that KSK Construction Group, LLC, is an additional insured under the defendant's insurance policy issued to ATA Construction, Inc., and that the defendant is obligated to defend and indemnify KSK Construction Group, LLC, in an underlying action entitled Pillco v. 160 Dikeman Street, LLC, pending in the Supreme Court, Kings County, under Index No. 524963/19, the defendant appeals from an order and interlocutory judgment (one paper) of the Supreme Court, Kings County (Lisa A. Ottley, J.), dated July 12, 2024.  The order and interlocutory judgment granted the plaintiff's motion for summary judgment on the first cause of action for declaratory relief and declared that the defendant is obligated to defend KSK Construction Group, LLC, in the underlying action.

ORDERED that the order and interlocutory judgment is affirmed, with costs.

The plaintiff, Berkley Insurance Company, commenced this action against the defendant, Farm Family Insurance Company.  The first cause of action sought a judgment declaring that KSK Construction Group, LLC (hereinafter KSK), is an additional insured under the defendant's insurance policy issued to ATA Construction, Inc. (hereinafter ATA), and that the defendant is obligated to defend KSK in an underlying action entitled Pillco v. 160 Dikeman Street, LLC, pending in the Supreme Court, Kings County, under Index No. 524963/19 (hereinafter the underlying action).  The underlying action was commenced by Fabian Pillco against, among others, KSK to recover damages for personal injuries he alleged he sustained while working for ATA.

The plaintiff moved for summary judgment on the first cause of action for declaratory relief.  The defendant opposed the motion.  In an order dated July 12, 2024, the Supreme Court granted the motion and declared that the defendant is obligated to defend KSK in the underlying action.  The defendant appeals.

“An insurer's duty to defend its insured arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy” (Nationwide Mut. Fire Ins. Co. v. Nelson, 232 A.D.3d 747, 748, 220 N.Y.S.3d 157;  see Pro's Choice Beauty Care, Inc. v. Great N. Ins. Co., 190 A.D.3d 868, 870, 140 N.Y.S.3d 544).  “If the allegations of the complaint are even potentially within the language of the insurance policy, there is a duty to defend” (One Reason Rd., LLC v. Seneca Ins. Co., Inc., 163 A.D.3d 974, 975, 83 N.Y.S.3d 235 [internal quotation marks omitted] ).  “In determining whether there is a reasonable possibility of recovery under the policy, parties are bound by the four corners of the complaint rule, under which courts of this State have refused to permit insurers to look beyond the complaint's allegations to avoid their obligation to defend and have held that the duty to defend exists if the complaint contains any facts or allegations which bring the claim even potentially within the protection purchased” (Zupko Painting, Inc. v. Utica First Ins. Co., 232 A.D.3d 651, 654, 220 N.Y.S.3d 148 [alteration and internal quotation marks omitted];  see Physicians Reciprocal Insurers v. Loeb, 291 A.D.2d 541, 542, 738 N.Y.S.2d 68).  “However, a court may look to judicial admissions in the insured's responsive pleadings in the underlying tort action or other formal submissions in the current or underlying litigation to confirm or clarify the nature of the underlying claims” (Zupko Painting, Inc. v. Utica First Ins. Co., 232 A.D.3d at 654, 220 N.Y.S.3d 148 [internal quotation marks omitted];  see Northville Indus. Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 89 N.Y.2d 621, 635, 657 N.Y.S.2d 564, 679 N.E.2d 1044).

Here, the insurance policy issued to ATA by the defendant was limited in scope to “liability caused, in whole or in part, by 1) [ATA's] acts or omissions;  or 2)[t]he acts or omissions of those acting on [ATA's] behalf in the performance of [ATA's] ongoing operations for” KSK. Although the complaint in the underlying action lacked specific allegations against ATA, Pillco testified at his deposition in the underlying action that he was injured while performing demolition work on a ladder owned by ATA. Therefore, the plaintiff's submissions established its prima facie entitlement to judgment as a matter of law on the first cause of action for declaratory relief (see One Reason Rd., LLC v. Seneca Ins. Co., Inc., 163 A.D.3d at 977, 83 N.Y.S.3d 235).  In opposition, the defendant failed to raise a triable issue of fact (see Nationwide Mut. Fire Ins. Co. v. Nelson, 232 A.D.3d at 749, 220 N.Y.S.3d 157).

Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the first cause of action for declaratory relief and declared that the defendant is obligated to defend KSK in the underlying action.

DUFFY, J.P., CONNOLLY, LOVE and QUIRK, JJ., concur.