Vineyard Sky, LLC v. Ian Banks, Inc. , 999 N.Y.S.2d 369 ( 2014 )

Vineyard Sky, LLC v Ian Banks, Inc. (2014 NY Slip Op 08503)

Vineyard Sky, LLC v Ian Banks, Inc.

2014 NY Slip Op 08503

Decided on December 4, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 4, 2014
Friedman, J.P., Acosta, Moskowitz, Richter, Clark, JJ.

13689 650392/12

[*1] Vineyard Sky, LLC, et al., Plaintiffs-Respondents,

v

Ian Banks, Inc., Defendant, Everest National Insurance Company, Defendant-Respondent, PCF State Restoration, Inc., et al., Defendants-Appellants. Everest National Insurance Company, Third-Party Plaintiff Respondent, Thomas Melone, Third-Party Defendant-Respondent, Brown Harris Stevens, Third-Party Defendant.

Litchfield Cavo LLP, New York (Michael J. Kozoriz of counsel), for appellants.

Thomas M. Melone, New York, for Vineyard Sky, LLC, Allco Realty, LLC, respondents, and respondent pro se.

Stewart Bernstiel Rebar & Smith, New York (Michael J. Smith of counsel), for Everest National Insurance Company, respondent.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered October 4, 2013, which, to the extent appealed from, denied defendants PCF State Restoration, Inc. (PCF) and Endurance American Insurance Company's (Endurance) motion to dismiss the second, sixth, seventh and eighth causes of action sounding in breach of contract, unanimously modified, on the law, to dismiss the sixth through eighth causes of action, and otherwise affirmed, without costs.

Plaintiffs, property owners that are alleged additional insureds under a commercial general liability policy (CGL) issued by Endurance to PCF, a roofing subcontractor that performed work at plaintiffs' property, have no right to coverage under the policy for losses resulting from water damage to the property allegedly caused by PCF's failure to adequately cover the building's roof, allowing heavy rains to infiltrate the upper floors of the building. The CGL policy provides coverage for claims brought by third parties; it does not provide first-party coverage for damage to plaintiffs' own property (see The Gap, Inc. v Fireman's Fund Ins. Co., 11 AD3d 108 [1st Dept 2004]; Sus, Inc. v St. Paul Traveler Group, 75 AD3d 740 [3d Dept 2010]).

Additionally, the CGL policy explicitly excludes coverage for any damage to plaintiffs' property that is attributable to PCF's construction operations (see generally Renaissance Art Investors, LLC v AXA Art Insurance Corporation, 102 AD3d 604 [1st Dept 2013]). Plaintiffs [*2]cannot avoid the policy language by attempting to recast themselves as intended third party beneficiaries. To the extent plaintiffs argue that they are entitled to indemnification and contribution because they were assigned the rights of their construction manager, defendant Ian Banks, Inc. (IBI), under the CGL policy, their argument is unavailing. Endurance denied coverage to IBI on the ground that plaintiffs' claimed damages arose from PCF's actions and/or inactions and IBI never challenged Endurance's position on the denial of coverage. Moreover, to the extent IBI settled with plaintiffs on the water damage claim, the policy required Endurance's signature on the settlement together with a release of its liability before it would be bound by the settlement and nothing in the record indicates that Endurance authorized the settlement. Accordingly, plaintiffs may not maintain a direct action against Endurance absent proof that they obtained a judgment against PCF, the insured (see Insurance Law § 3420). Plaintiffs' sixth, seventh and eighth causes of action against Endurance must therefore be dismissed.

The portion of the motion seeking dismissal of plaintiffs' second cause of action for breach of contract based on PCF's failure to pay for losses and damages resulting from the failure to adequately cover the building's roof during the renovation was properly denied. The allegations, along with the submission of a sworn affirmation from plaintiffs' attorney/managing agent, and an insurance letter indicating that there is a factual basis for potentially finding, inter alia, the functional equivalent of privity between PCF and plaintiffs, and that plaintiffs were covered by the hold harmless provisions in the PCF subcontract, were not conclusively refuted by the documentary evidence.

We have considered the parties' remaining arguments and find that they are either unpreserved or unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 4, 2014

CLERK