| Insurance Corp. of N.Y. v U.S. Underwriters Ins. Co. |
| 2004 NY Slip Op 07223 [11 AD3d 235] |
| October 7, 2004 |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Appellate Division, First Department |
| The Insurance Corporation of New York, Appellant, v U.S. Underwriters Insurance Company, Respondent and Third-Party Plaintiff-Respondent, et al., Defendant. Ginsburg Development Corp., Third-Party Defendant-Appellant, et al., Third-Party Defendant. |
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Order, Supreme Court, New York County (Joan A. Madden, J.), entered February 20, 2004, which, inter alia, upon the parties' respective motions for summary judgment, declared that defendant-respondent U.S. Underwriters Insurance Company is not obligated to defend and indemnify plaintiff-appellant Insurance Corporation's insured, third-party defendant-appellant general contractor Ginsburg, in an underlying action for personal injuries brought by an employee of U.S. Underwriters' insured, defendant subcontractor Gamma Builders, unanimously affirmed, with one bill of costs.
Insurance Corporation seeks a declaration that U.S. Underwriters, by reason of the policy it issued to subcontractor Gamma Builders, is obligated to defend and indemnify general contractor Ginsburg in an underlying action for personal injuries brought by Gamma's employee. The motion court declared to the contrary on the ground that Ginsburg was not an additional insured on U.S. Underwriters' policy. We reject Insurance Corporation's claim that such finding was made sua sponte, or improperly based on an argument raised by U.S. Underwriters for the first time in reply papers ( We have considered appellants' other arguments and find them unavailing. Concur—Nardelli, J.P., Mazzarelli, Sullivan, Williams and Catterson, JJ.