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Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY
Present: HONORABLE THOMAS V. POLIZZI
IA Part 14
Justice
________________________________________
x Index
LJWP. REALTY CO., LLC
Number 18045 1998
Motion
- against -
Date February 29, 2000
UTICA FIRST INSURANCE COMPANY, et al.
Motion
Cal. Number 9
________________________________________x
The following papers numbered 1 to 17 read on this motion by defendant Utica First Insurance Company (hereinafter "Utica") for summary judgment, a cross motion by defendant TNL Construction, Inc. (hereinafter "TNL") for summary judgment against plaintiff, and a cross motion by plaintiff L.J.W.P. Realty Co., Inc. (hereinafter "Realty") for summary judgment.
Papers
Numbered
Notice of Motion - Affidavits - Exhibits ......... 1-4
Notices of Cross Motion - Affidavits - Exhibits .. 5-13
Reply Affidavits ................................. 14-17
Upon the foregoing papers it is ordered that the motion and cross motions are determined as follows:
In this action, plaintiff Realty seeks a judgment declaring that Utica and TNL are obligated to defend and indemnify plaintiff in another action brought against it in this court to recover damages for personal injuries allegedly sustained by Mohsen Moustafa as a result of Realty's negligence and violation of the Labor Law while Moustafa was working as an employee of TNL on a construction project for Realty. Realty commenced a third-party action for contribution and indemnification against TNL in the underlying action. The third-party action has been voluntarily discontinued with prejudice. It is alleged by Realty herein that, pursuant to the contract entered into between Realty and TNL for the construction project, TNL obtained a liability insurance policy from Utica naming Realty as an additional insured and that Realty is, therefore, entitled to a defense and indemnification in the underlying action.
Defendant Utica has established that plaintiff was not an additional insured under the liability insurance policy issued by Utica to TNL. Plaintiff's reliance on a certificate of insurance issued to it by TNL's insurance broker, which indicates that plaintiff is an additional insured on the Utica policy, is misplaced. The certificate of insurance expressly states that it is issued as a matter of information only, that it confers no rights upon the certificate holder, and that it does not amend, extend or alter the coverage afforded by the policy. Such a certificate of insurance is insufficient, by itself, to raise a triable issue of fact as to whether plaintiff is insured under the Utica policy, where the policy itself conclusively demonstrates that plaintiff was not named as an additional insured thereunder. (See, American Ref-Fuel Co. of Hempstead v Resource Recycling, 248 AD2d 420, 423; see also, Kennelty v Darlind Constr., 260 AD2d 443; Penske Truck Leasing Co. v Home Ins. Co., 251 AD2d 478; McGill v Polytechnic Univ., 235 AD2d 400.) In addition, Utica was not a party to the contract between TNL and Realty and, therefore, cannot be held liable for any alleged failure on the part of TNL to perform any contractual obligation TNL might have had to procure insurance naming Realty as an additional insured.
Nor can Utica be estopped from denying coverage to plaintiff based on any alleged failure to disclaim. Since the failure to disclaim coverage in a timely manner cannot create insurance where none exists under the policy, the doctrine of estoppel may not be invoked under these circumstances. (Zappone v Home Ins. Co., 55 NY2d 131, 137-138; American Ref-Fuel Co. of Hempstead v Employers Ins. Co. of Wausau, ___ AD2d ___, 705 NYS2d 67, 69; American Ref-Fuel of Hempstead v Resource Recycling, supra, at 423-424; Wausau Ins. Cos. v Feldman, 213 AD2d 179.) In addition, TNL does not dispute Utica's claim of entitlement to judgment on their respective cross claims.
As noted above, the third-party action brought by Realty against TNL in the underlying action has been discontinued with prejudice pursuant to stipulation of the parties. Res judicata effect is accorded to a stipulation of discontinuance with prejudice. (React Serv., Inc. v Rindos, 243 AD2d 550; see, Mosello v First Union Bank, 258 AD2d 631; Van Haf v Town of Warwick, 249 AD2d 382; Schwartzreich v E.P.C. Carting Co., 246 AD2d 439.) Using the transactional approach followed in New York to analyze res judicata questions, all other claims arising out of the same transaction or series of transactions as a claim which has been finally concluded will be barred, even if based upon different theories or if seeking a different remedy. (O'Brien v City of Syracuse, 54 NY2d 353, 357; Schwartzreich v E.P.C. Carting Co., supra.) If a party had a full and fair opportunity to litigate a claim in a prior proceeding based on the same transaction but did not raise it therein, the party will be barred from raising it subsequently in another proceeding. (Schwartzreich v E.P.C. Carting Co., supra; Browning Ave. Realty Corp. v Rubin, 207 AD2d 263, 264-265.) The claims asserted by plaintiff against TNL in this action are premised upon the same transaction or series of transactions that were the subject of the third-party action against TNL which was discontinued with prejudice by Realty. Thus, plaintiff's action against TNL is barred by the doctrine of res judicata. (See, Joseph v Citibank, ___ AD2d ___, 2000 WL 490838; Schwartzreich v E.P.C. Carting Co., supra.)
Accordingly, the motion by Utica and the cross motion by TNL are granted, the cross motion by plaintiff is denied, and it is declared that Utica has no obligation to defend and/or indemnify plaintiff in the action commenced against plaintiff in this court under Index No. 25207/96, entitled Mohsen Moustafa v L.J.W.P. Realty Co., LLC, and no obligation to defend and/or indemnify TNL in the third-party action therein. It is further declared that Realty is barred from litigating the claims it has raised against TNL herein.
Dated: June 12, 2000 ______________________________
J.S.C.