MINCHALA v. Western Heritage Insurance Co., Third-Party Defendant-Appellant. (2019)

DECISION & ORDER

In an action to recover damages for personal injuries, the third-party defendant Western Heritage Insurance Co. appeals from an order of the Supreme Court, Queens County (Salvatore Modica, J.), dated December 15, 2017. The order, insofar as appealed from, denied that branch of that third-party defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the third-party complaint insofar as asserted against it and, in effect, for a judgment declaring that it was not obligated to defend and indemnify the defendant 829 Jefferson, LLC, in the main action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against, among others, 829 Jefferson, LLC (hereinafter 829 Jefferson), for personal injuries he allegedly sustained while he was engaged in the “performance of construction, demolition, excavation, erection, repairing, altering, painting, cleaning, and/or pointing” at a building and work site located at 829 Jefferson Avenue in Brooklyn. Thereafter, 829 Jefferson commenced a third-party action against Ciano Concrete Corp. (hereinafter Ciano Concrete) and Ciano Concrete's insurer, Western Heritage Insurance Co. (hereinafter Western Heritage), seeking, inter alia, a declaration that Western Heritage was obligated to defend and indemnify 829 Jefferson in the main action. Western Heritage moved, inter alia, pursuant to CPLR 3211(a)(1) to dismiss the third-party complaint insofar as asserted against it and, in effect, for a judgment declaring that it was not obligated to defend and indemnify 829 Jefferson in the main action. Western Heritage alleged that 829 Jefferson had hired Ciano Concrete to work as a contractor at the site, and that the plaintiff had been injured while working as an employee of Ciano Concrete, so that coverage for the plaintiff's injuries was excluded by an endorsement entitled “Exclusion–Injury to Contractors” in the insurance policy Western Heritage issued to Ciano Concrete. The Supreme Court denied that branch of Western Heritage's motion, and Western Heritage appeals.

Where “an insurer wishes to exclude certain coverage from its policy obligations, it must do so ‘in clear and unmistakable’ language” (Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 311, 486 N.Y.S.2d 873, 476 N.E.2d 272, quoting Kratzenstein v. Western Assur. Co. of City of Toronto, 116 N.Y. 54, 59, 22 N.E. 221; see Fruchthandler v. Tri–State Consumer Ins. Co., 171 A.D.3d 706, 96 N.Y.S.3d 649). Any ambiguity in the terms of an insurance policy must be construed in favor of the insured and against the insurer (see White v. Continental Cas. Co., 9 N.Y.3d 264, 267, 848 N.Y.S.2d 603, 878 N.E.2d 1019; United States Fid. & Guar. Co. v. Annunziata, 67 N.Y.2d 229, 232, 501 N.Y.S.2d 790, 492 N.E.2d 1206; Soundview Assoc. v. New Hampshire Ins. Co., 215 A.D.2d 370, 370, 625 N.Y.S.2d 659). “However, the plain meaning of a policy's language may not be disregarded to find an ambiguity where none exists” (Howard & Norman Baker, Ltd. v. American Safety Cas. Ins. Co., 75 A.D.3d 533, 534, 904 N.Y.S.2d 770; see Bayport Constr. Corp. v. BHS Ins. Agency, 117 A.D.3d 660, 661, 985 N.Y.S.2d 143; Bassuk Bros. v. Utica First Ins. Co., 1 A.D.3d 470, 471, 768 N.Y.S.2d 479).

A party may move for judgment dismissing one or more causes of action asserted against it on the ground that a defense is founded upon documentary evidence (see CPLR 3211[a][1]). “Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Rodolico v. Rubin & Licatesi, P.C., 114 A.D.3d 923, 924, 981 N.Y.S.2d 144). “[T]o be considered ‘documentary,’ evidence must be unambiguous and of undisputed authenticity” (Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569 [internal quotation marks omitted]; see Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d 713, 714, 948 N.Y.S.2d 658; Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 997, 913 N.Y.S.2d 668). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are ‘essentially undeniable,’ would qualify as ‘documentary evidence’ in the proper case” (Fontanetta v. John Doe 1, 73 A.D.3d at 84–85, 898 N.Y.S.2d 569; see Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d at 714, 948 N.Y.S.2d 658). However, affidavits, deposition testimony, and letters are not considered documentary evidence within the intent of CPLR 3211(a)(1) (see Rodolico v. Rubin & Licatesi, P.C., 114 A.D.3d at 925, 981 N.Y.S.2d 144; Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d at 714, 948 N.Y.S.2d 658; Granada Condominium III Assn. v. Palomino, 78 A.D.3d at 997, 913 N.Y.S.2d 668; Fontanetta v. John Doe 1, 73 A.D.3d at 85–86, 898 N.Y.S.2d 569).

Here, in support of that branch of its motion which was pursuant to CPLR 3211(a)(1) to dismiss the third-party complaint insofar as asserted against it and, in effect, for a judgment declaring that it was not obligated to defend and indemnify 829 Jefferson in the main action, Western Heritage submitted a certified copy of the relevant insurance policy, a tender letter from 829 Jefferson's counsel, Western Heritage's disclaimer letter, and an affidavit from an employee of Western Heritage. The relevant insurance policy, which qualifies as documentary evidence, includes an endorsement entitled “Exclusion–Injury to Contractors” which unequivocally establishes that the policy does not require Western Heritage to defend, indemnify, or contribute with another because of bodily injury to any employee of any insured or contractor (see Total Concept Carpentry, Inc. v. Tower Ins. Co. of N.Y., 95 A.D.3d 411, 943 N.Y.S.2d 473; see also Northfield Ins. Co. v. Fancy Gen. Constr., Inc., 167 A.D.3d 916, 918, 91 N.Y.S.3d 250; Bayport Constr. Corp. v. BHS Ins. Agency, 117 A.D.3d at 661, 985 N.Y.S.2d 143; Soho Plaza Corp. v. Birnbaum, 108 A.D.3d 518, 521, 969 N.Y.S.2d 96; Campoverde v. Fabian Bldrs., LLC, 83 A.D.3d 986, 988, 922 N.Y.S.2d 435; Richner Dev., LLC v. Burlington Ins. Co., 81 A.D.3d 705, 706, 916 N.Y.S.2d 211; 385 Third Ave. Assoc., L.P. v. Metropolitan Metals Corp., 81 A.D.3d 475, 476, 916 N.Y.S.2d 95; Howard & Norman Baker, Ltd. v. American Safety Cas. Ins. Co., 75 A.D.3d at 534–535, 904 N.Y.S.2d 770; Makan Exports, Inc. v. U.S. Underwriters Ins. Co., 43 A.D.3d 883, 885, 841 N.Y.S.2d 662; Guachichulca v. Laszlo N. Tauber & Assoc., LLC, 37 A.D.3d 760, 762, 831 N.Y.S.2d 234). However, the insurance policy does not establish that the plaintiff was an employee of any insured or contractor, and the other evidence submitted by Western Heritage does not qualify as documentary evidence. Accordingly, Western Heritage failed to submit documentary evidence conclusively establishing a defense as a matter of law (see CPLR 3211[a][1]; Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Fontanetta v. John Doe 1, 73 A.D.3d at 87, 898 N.Y.S.2d 569), and we agree with the Supreme Court's determination denying that branch of Western Heritage's motion which was to dismiss the third-party complaint insofar as asserted against it and, in effect, for a judgment declaring that it was not obligated to defend and indemnify 829 Jefferson in the main action.

MASTRO, J.P., MALTESE, CONNOLLY and IANNACCI, JJ., concur.