MCINTOSH v. Crum & Forster Specialty Insurance Company, Third-Party Defendant-Appellant. (2020)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

In February 2014, the third-party defendant A.B.C. Tank Repair & Lining, Inc. (hereinafter A.B.C. Tank), was hired by the defendant third-party plaintiff, Ronit Realty, LLC (hereinafter Ronit), to perform tank removal work at a warehouse in Brooklyn (hereinafter the premises).  The plaintiff, an employee of A.B.C. Tank, allegedly was injured at the premises while acting within the scope of his employment.  The third-party defendant Crum & Forster Specialty Insurance Company (hereinafter Crum) was the issuer of A.B.C. Tank's commercial general liability insurance policy.

In March 2014, the plaintiff commenced this action against Ronit to recover damages for personal injuries.  In December 2016, Ronit commenced a third-party action against, among others, Crum, seeking, inter alia, a judgment declaring that Ronit was entitled to insurance coverage in connection with this action as an additional insured under A.B.C. Tank's policy.  Crum moved for summary judgment dismissing the third-party complaint insofar as asserted against it and declaring that it had no duty to defend or indemnify Ronit, contending that Ronit did not qualify as an additional insured under the terms of A.B.C. Tank's policy.  In an order dated January 26, 2018, the Supreme Court denied the motion, and Crum appeals.

Generally, in a dispute over insurance coverage, the insured bears the initial burden of establishing that the loss claimed falls within the scope of the policy (see Consolidated Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d 208, 220, 746 N.Y.S.2d 622, 774 N.E.2d 687).  “Once coverage is established, the insurer bears the burden of proving that an exclusion applies” (id. at 220, 746 N.Y.S.2d 622, 774 N.E.2d 687).  However, as the moving party with respect to a motion for summary judgment, Crum had the burden of establishing its prima facie entitlement to judgment as a matter of law (see Lancer Ins. Co. v. Whitfield, 61 A.D.3d 724, 725, 878 N.Y.S.2d 82).  Here, Crum failed to do so.  The failure of Crum to make the requisite prima facie showing warranted the denial of its motion regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Accordingly, we agree with the Supreme Court's determination to deny Crum's motion for summary judgment dismissing the third-party complaint insofar as asserted against it and declaring that it had no duty to defend or indemnify Ronit.

RIVERA, J.P., CHAMBERS, MILLER and CONNOLLY, JJ., concur.