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Supreme Court, Appellate Division, First Department, New York.

Andrzej MALMON, et al., Plaintiffs, v. EAST 84TH APARTMENT CORP., et al., Defendants.

Concord Restoration, Inc., Third-Party Plaintiff-Respondent, Liberty International a/s/o Concord Restoration, Inc., Third-Party Plaintiff, v. Marble Unique, LLC, et al., Third-Party Defendants-Appellants Hi-Tech Restoration LLC, et al., Third-Party Defendants. [And a Second Third-Party Action].

Decided: November 19, 2009

ANDRIAS, J.P., SWEENY, NARDELLI, CATTERSON, DeGRASSE, JJ. Lawrence, Worden, Rainis & Bard, P.C., Melville (Roger B. Lawrence of counsel), for appellants. Devereaux Baumgarten, New York (Michael J. Devereaux of counsel), for respondent.

Order, Supreme Court, New York County (Louis B. York, J.), entered October 22, 2008, which, to the extent appealed from, denied third-party defendants Marble Unique, LLC and Hartford Insurance Company of the Midwest's motions for summary judgment dismissing the declaratory judgment action of third-party plaintiffs Concord Restoration Inc. and Liberty International a/s/o Concord Restoration Inc. for indemnification and a declaration of their duty to defend and which, inter alia, granted Concord Restoration Inc. and Liberty International a/s/o Concord Restoration Inc.'s cross motions for summary judgment to the extent of declaring that Hartford had a duty to defend them in the underlying action, unanimously modified, on the law, to declare as well that the aforementioned third-party defendants had no obligation to indemnify, and otherwise affirmed, without costs.

 We find that Concord had notice of the Workers' Compensation Board hearing and that its worker's compensation carrier appeared and presented testimony therein.   As such, Concord was bound by the WCB determination that Hi Tech, and not Marble, was the underlying plaintiff's employer at the time of the accident (see Liss v. Trans Auto Sys., 68 N.Y.2d 15, 21, 505 N.Y.S.2d 831, 496 N.E.2d 851 [1986] ).   Even without regard to the WCB determination, summary judgment on this issue should have been granted to Marble.   The evidence that Hi Tech was on the work site at the time of the accident and that Marble was not on site, had ceased work months before and did not resume work until months after the accident established movant's entitlement to judgment.   Concord presented no evidence to the contrary that would require a trial.   However, because the claim against Marble, ultimately unavailing, on its face fell within the ambit of its insurance, Hartford had the duty to defend.   As such, summary judgment was properly granted to Concord on that part of its claim (see BP A.C. Corp. v. One Beacon Ins. Group, 8 N.Y.3d 708, 840 N.Y.S.2d 302, 871 N.E.2d 1128 [2007];  Ruder & Finn v. Seaboard Sur. Co., 52 N.Y.2d 663, 439 N.Y.S.2d 858, 422 N.E.2d 518 [1981] ).