Third-party defendant BURLINGTON INSURANCE COMPANY (Burlington) moves seeking an order granting it summary judgment over third-party plaintiffs, thereby dismissing the third-party action against it. To the extent that the third-party cause of action asserted against Burlington is one for indemnification, insurance coverage, and assumption of third-party plaintiffs EAST 34TH STREET DEVELOPMENT, LLC's, (East) and M.D. CARLISLE CONSTRUCTION CORP.'s (MD) defense, Burlington seeks dismissal of the action asserting [*2]that it provided no insurance coverage to East or MD. Additionally, Burlington seeks dismissal of the instant action to the extent that even if it did provide coverage to East and MD, the same failed to provide Burlington with due and timely notice of the first party action herein. Alternatively, Burlington seeks severance of the third-party action against it on grounds of prejudice. East, MD, and third-party plaintiff ARCH INSURANCE COMPANY (Arch) oppose the instant motion asserting that East and MD were additional insured's under a policy Burlington issued to third-party defendant PRECISE BRICK, INC. (Precise). Further, East, MD, and Arch aver that due and timely notice of the accident herein was provided to Burlington, by third-party defendant WESTCHESTER FIRE INSURANCE CO. (Westchester). East, MD, and Arch oppose Burlington's motion to sever the action against Burlington, asserting that severance is not warranted as the first party action and third-party action are closely related. Lastly, East, MD, and Arch oppose the instant motion asserting that the lack of discovery renders the same premature. Third-party defendant ON PAR CONTRACTING (Par), opposes the instant motion asserting that Burlington has failed to establish that it did not receive notice of the action as soon as practicable. Westchester opposes the instant motion asserting that the motion is premature as discovery has yet to be conducted.

For the reasons that follow hereinafter, Burlington's motion is hereby granted in part.

The instant first party action is for alleged personal injuries sustained by plaintiff. The first-party complaint alleges that on August 6, 2003, plaintiff was injured while within the premises owned and maintained by East. It is alleged that East hired MD to perform construction work at the premises herein. MD in turn hired Par to perform work at the premises herein, who in turn hired Precise, plaintiff's employer. Plaintiff alleges that first-party defendants were negligent and caused his accident and injury and that they violated multiple sections of the Labor Law.

The instant third-party action is for contribution and indemnification and although not specifically prayed for, seeks a declaratory judgment. With regard to Par and Precise, the third-party complaint seeks contribution, both common law and contractual indemnification, and asserts a breach of contract claim for Par and Precise's alleged failure to procure general liability insurance for the benefit of East and MD. With regard to Westchester, the third-party complaint asserts a breach of contract claim inasmuch as Westchester has failed to assume East and MD's defense in the first-party action and further seeks to have Westchester indemnify and assume East and MD's defense. It is alleged that Westchester issued an insurance policy to Par naming East and MD as additional insureds. With regard to Burlington, the third-party complaint asserts a breach of contract claim inasmuch as Burlington has failed to assume East and MD's defense in the first-party action and further seeks to have Burlington indemnify and assume East and MD's defense. It is alleged that Burlington issued an insurance policy to Precise naming East and MD as additional insureds.

In support of its motion, Burlington submits ^[FN1] an affidavit from John Keizer (Keizer), who states, in pertinent part, as follows. Keizer is employed by Guilford Specialty Group, Inc. (GSG) as a [*3]claims supervisor for the same's property and casualty affiliates, which includes Burlington. On June 30, 2003, Burlington issued an insurance policy No.512B000129 to Precise. Said policy did not name East or MD as insureds or additional insureds. Said policy did not contain any endorsements proving coverage to East or MD.

Burlington submits a certified copy of insurance policy #

512B000129. The declarations page states that said policy was effective June 30, 2003 through June 30, 2004. Said policy was a commercial general liability policy and lists Precise as the insured. Pursuant to a page titled "Commercial General Liability Form", the policy herein covers bodily injury and property damage liability. Under "Who Is an Insured," the policy herein states that coverage is afforded to anyone listed in the declarations page, extending coverage to employees of the person listed in the declarations page. Under "Coverages", said policy reads

[w]e will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury' or property damage' to which this insurance applies. We will have the right and duty to defend the insured against any suit' seeking those damages. However, we will have no duty to defend the insured against any suit' seeking damages for bodily injury' or property damage' to which this insurance does not apply...

Under "Exclusions", the policy states that it does not apply to contractual liability, but the policy states that the exclusion does not apply for damages "[a]ssumed in a contract or agreement that is an insured contract', provided the bodily injury' or property damage' occurs subsequent to the execution of the contract or agreement...." Paragraph 9 under definitions, defines an "Insured Contract," among other ways, as follows

[t]hat part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for bodily injury' or property damage' to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.

A page titled "Contractual Liability Amendment" states that the exception to the exclusion for an "Insured Contract" does not apply.

Burlington submits an affidavit from Barbara J. Simpson (Simpson) who states, in pertinent part, as follows. Simpson is regional director for GRC and performs services for GRC's property and casualty affiliates, including Burlington. Burlington issued insurance policy #

512B000129 to Precise. Said policy does not contain a blanket additional endorsement or any other provision providing insurance coverage to East or MD. The policy herein was placed for Precise through CRC Insurance Services, Inc. (CRC), Burlington's wholesaler. Burlington is a surplus lines insurer, who according to New York State Insurance Department regulations must place any insurance through a licensed surplus lines wholesaler. Precise placed an order for the policy herein through Ralph Silvers Agency (RSA), who in turn contacted CRC to obtain the policy herein. RSA is not nor has ever been an agent of Burlington with ability to bind Burlington. Burlington does not permit its agents to issue blanket additional insured endorsements on its policies. Burlington is not aware of any request by Precise naming East, MD, nor Par as additional insureds on the policy herein. The quote generated by CRC and [*4]provided to RSA for the policy herein did not contain any additional insured endorsements.

Burlington provides uncertified copies of the CRC quote for the policy herein. Burlington also provides a response to East and MD's demand for discovery.

In opposition to the instant motion, East and MD, submit an uncertified copy of a contract between itself and Par. East and MD submit an uncertified copy of the contract between Par and Precise. East and MD submit three uncertified certificates of insurance, all of which state that the same are issued for informational purposes only and that the same confer no rights upon the certificate holder. One of the certificates lists East and MD as additional insureds on the policy issued by Burlington to Precise.

In opposition to the instant motion, Westchester submits an uncertified copy of a news article regarding CRC.

The Law and Standard on Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 161 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993).

Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).

It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the [*5]particular case. (Internal citations omitted).

Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Thus, while evidence inadmissible when the motion is made and inadmissible when the case is tried, is insufficient to raise an issue of a fact precluding summary judgment; inadmissible evidence, whose inadmissability has been excused and which may likely be admissible at trial, may be considered. Phillips v. Joseph Kantor & Company, 31 NY2d 307 (1972). In Phillips, for example, the court discussed that in lieu of affidavits from actual witnesses, detailing the substance of their testimony, affidavits listing witnesses' names, the substance of their testimony, and how said witnesses acquired their knowledge, could be considered and could raise an issue of fact sufficient to defeat summary judgment. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witness's testimony and that witness's testimony created an issue of fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991).

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 34,1 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas & Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra ).

See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick & Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).

Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).

Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d [*6]317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).

A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano, 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).

CPLR §3212(f)

Pursuant to CPLR §3212(f), a motion for summary judgment will be denied if it appears that facts necessary to oppose the motion exist but are unavailable to the opposing party. This relief is particularly warranted when the facts necessary to oppose the motion are within the exclusive knowledge of the moving party. Franklin National Bank of Long Island v. De Giacomo, 20 AD2d 797 (2nd Dept. 1964); De France v. Richard W. Oestrike, 8 AD2d 735 (2nd Dept. 1959); Blue Bird Coach Lines, Inc. v. 107 Delaware Avenue, N.V., Inc, 125 AD2d 971 (4th Dept. 1986).

A party claiming ignorance of facts critical to defeat a motion for summary judgment, is only entitled to further discovery and denial of a motion for summary judgment if said party demonstrates that reasonable attempts were made to discover facts which, as the opposing party claims, would give rise to a triable issue of fact. Sasson v. Setina Manufacturing Company, Inc., 26 AD3d 487 (2nd Dept. 2006); Cruz v. Otis Elevator Company, 238 AD2d 540 (2nd Dept. 1997). Implicit in this rationale is that the proponent of further discovery and denial of the motion for summary judgment, must identify facts, which indeed give rise to triable issues of fact. This is because, the Court does not condone fishing expeditions and as such "[m]ere hope and speculation that additional discovery might uncover evidence sufficient to raise a triable issue of fact is not sufficient." Sasson v. Setina Manufacturing Company, Inc, at 501. Additional discovery, should not be resorted to, where the proponent of the additional discovery has failed to demonstrate that the discovery sought would produce relevant evidence. Frith v. Affordable Homes of America, Inc., 253 AD2d 536 (2nd Dept. 1998).

When the information necessary to oppose the instant motion, is wholly within the control of the party opposing summary judgment, and could be produced by way of sworn affidavits, denial of a motion for summary judgment pursuant to CPLR §3212(f), will be denied. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999).

Contracts

It has long been held that absent a violation of law or some transgression of public policy, people are free to enter into contracts, making whatever agreement they wish, no matter how unwise said agreements may seem to others. Rowe v. Great Atlantic & Pacific Tea Company, Inc., 46 NY2d 62 (1978). Consequently when a contract dispute arises, it is the court's role to enforce the agreement rather than reform it. Grace v. Nappa, 46 NY2d 560 (1979). In order to enforce the agreement, the court must construe the contract in accordance with the intent of the parties. Greenfield v. Philles Records, Inc., 98 NY2d 562 (2002). The best evidence with regard to the intent of the parties is the very contract itself and the writings contained therein. Id. Thus, it is well settled that "when the parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms." Vermont Teddy Bear Co., Inc. v. 583 Madison Realty Company, 1 NY3d 470, 475 (2004), quoting, W.W.W. Assoc. v. Giancontieri, 77 NY2d 157, 162 (1990). Accordingly, courts should be reluctant to interpret agreements as [*7]implicitly stating something not specifically included by the parties, and

courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing

Vermont Teddy Bear Co., Inc. v. 583 Madison Realty Company, 1 NY3d 470, 475, quoting, Reiss v. Financial Performance Corp., 97 NY2d 195, 199 (2001).

Insurance Policies

Principles generally applicable to contract interpretation apply equally to insurance contracts and insurance policies. State of New York v. American Manufactures Mutual Insurance Company, 188 AD2d 152 (3rd Dept. 1993). It is well settled that the court has the responsibility of determining the rights and obligations of the parties under an insurance contract, using the specific language of the policy itself. Sanabria v. American Home Assurance Company, 68 NY2d 866 (1986); State of New York v. Home Indemnity Company, 66 NY2d 669 (1985); Stainless, Inc. v. Employers Fire Insurance Company, 69 AD2d 27 (1st Dept. 1979); Stasack v. Capital District Physicians' Health Plan, Inc., 290 AD2d 866 (3rd Dept. 2002).

When the language in an insurance policy is clear and unambiguous, the interpretation of said document and the determination of the rights and obligations of the parties is a question of law to be adjudicated by the court. Kenyon v. Knights Templar and Masonic Mutual Aid Association, 122 NY 247 (1890); Stainless, Inc. v. Employers Fire Insurance Company, 69 AD2d 27 (1st Dept. 1979); Stasack v. Capital District Physicians' Health Plan, Inc., 290 AD2d 866 (3rd Dept. 2002). However, if the language in the policy is ambiguous, the court can use extrinsic evidence to determine the intent of the parties to the policy and resolution of the rights and obligations of the parties is a question of fact, to be determined by the trier of fact. State of New York v. Home Indemnity Company, 66 NY2d 669 (1985); Hartford Accident & Indemnity Company v. Wesolowski, 33 NY2d 169 (1973); Stainless, Inc. v. Employers Fire Insurance Company, 69 AD2d 27 (1st Dept. 1979). If the extrinsic evidence is conclusory, failing to equivocally resolve the ambiguity in a policy, interpretation of the policy remains a question of law for the court to decide; deciding any ambiguities against the insurer. State of New York v. Home Indemnity Company, 66 NY2d 669 (1985); Stainless, Inc. v. Employers Fire Insurance Company, 69 AD2d 27 (1st Dept. 1979).

In interpreting an insurance policy, the language of the policy, when clear and unambiguous, must be given its plain and ordinary meaning. United States Fidelity & Guaranty Company v. Annunziata, 67 NY2d 229 (1986). Sanabria v. American Home Assurance Company, 68 NY2d 866 (1986). In such a case, the policy should be construed in a way "that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect." Raymond Corporation v, National Union Fire Insurance Company of Pittsburgh, PA., 5 NY3d 157, 162 (2005). Stated differently, the language used in the policy "must be found in the common sense and common speech of the average person...." Stainless, Inc. v. Employers Fire Insurance Company, 69 AD2d 27, 32-33. (1st Dept. 1979).

A party seeking or claiming insurance coverage, bears the burden of demonstrating entitlement to coverage. Consolidated Edison Company of New York, Inc. v. Allstate Insurance company, 98 NY2d 208 (2002); Tribeca Broadway Associates, LLC v. Mount Vernon Fire Insurance Company, 5 AD3d 198 (1st Dept. 2004); Meleon v. Kreisler Borg Florman General Construction [*8]Company, Inc., 304 AD2d 337 (1st Dept. 2003); Chase Manhattan Bank, N.A. v. The Travelers Group, Inc., 269 AD2d 107 (1st Dept. 2000); Daniel v. Allstate Life Insurance Company, 71 AD2d 872 (2nd Dept. 1979). Further, it is well settled that a party not named on the face of the policy is not entitled to coverage under said policy. Tribeca Broadway Associates, LLC v. Mount Vernon Fire Insurance Company, 5 AD3d 198 (1st Dept. 2004); Meleon v. Kreisler Borg Florman General Construction Company, Inc., 304 AD2d 337 (1st Dept. 2003); Sanabria v. American Home Assurance Company, 68 NY2d 866 (1986); Tilden Commercial Alliance, Inc. v. 2nd Edition Originals, Inc., 242 AD2d 702 (2nd Dept. 1997). As such, it follows, that a certificate of insurance purporting to afford a party coverage, which on its face states that it is issued for informational purposes only, cannot by itself establish coverage. Tribeca Broadway Associates, LLC v. Mount Vernon Fire Insurance Company, 5 AD3d 198 (1st Dept. 2004); Meleon v. Kreisler Borg Florman General Construction Company, Inc., 304 AD2d 337 (1st Dept. 2003); American Motorist Insurance Company v. Superior Acoustics, Inc., 277 AD2d 97 (1st Dept. 2000); Buccini v. 1568 Broadway Associates, 250 AD2d 466 (1st Dept. 1998); Trapani v. 10 Arial Way Associates, 301 AD2d 644 (2nd Dept. 2003); American Ref-Fuel Company of Hempstead v. Resource Recycling, Inc., 248 AD2d 420 (2nd Dept. 1998); Kaufman v. Puritan Insurance Company, 126 AD2d 702 (2nd Dept. 1987). This is because a certificate of insurance "is only evidence of a carrier's intent to provide coverage but is not a contract to insure..." issued for informational purposes only, cannot by itself establish coverage. Tribeca Broadway Associates, LLC v. Mount Vernon Fire Insurance Company, 5 AD3d 198, 200 (1st Dept. 2004). As such, in American Motorist Insurance Company, the court held that a certificate of insurance offered in opposition to a motion for summary judgement was insufficient to create an issue of fact as to insurance coverage, in that case that defendant was an additional insured. American Motorist Insurance Company v. Superior Acoustics, Inc., 277 AD2d 97 (1st Dept. 2000). Similarly, in Meleon v. Kreisler Borg Florman General Construction Company, Inc., the court held that the certificate of insurance did not establish insurance coverage, especially insofar as the policy did not list defendant as an insured. Meleon v. Kreisler Borg Florman General Construction Company, Inc., 304 AD2d 337 (1st Dept. 2003).

A third-party, meaning a non-party to a contract can nevertheless enforce coverage under an insurance coverage if he demonstrates that the parties to the insurance policy intended to insure said third-party's interest. Stainless, Inc. v. Employers Fire Insurance Company, 69 AD2d 27 (1st Dept. 1979). This is because it is well established that a third-party can sue on a contract made for said third-party's benefit. Flemington National Bank & Trust Company v. Domler Leasing Corporation, 65 AD2d 29 (1st Dept. 1978); Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 108 AD2d 3 (2nd Dept. 1985). In order to enforce a contract, a third-party beneficiary must demonstrate that it was the intent of the parties to benefit the third-party and that intent must be evident from the four corners of the document itself. Id. ; Bernal v. Pinkerton's, Inc., 52 AD2d 760 (1st Dept. 1976). Alternatively, intent to benefit a third-party can also be established if it is shown that a third-party is benefitted by a performance on a contract, such as when the contract calls for performance upon a third-party. Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 108 AD2d 3 (2nd Dept. 1985); Goldman-Marks Associates, Inc. v. Westbury Post Associates, 70 AD2d 145 (2nd Dept. 1979). For purposes of obtaining benefit upon a contract, the identity of a third-party beneficiary to a contract need not be known or listed within a contract at the time the [*9]same was executed. MK West Street Company v. Meridien Hotels, Inc., 184 AD2d 312 (1st Dept. 1992); 981 Third Avenue Corp. v Beltramini, 108 AD2d 667 (1st Dept. 1985).

Discussion

Burlington's motion for summary judgment in the third-party action is hereby granted. With the evidence submitted, Burlington has demonstrated that neither East nor MD are additional insureds under the contract issued to Precise and that as such, Burlington has no obligation to extend coverage to them, to indemnify them or to provide a defense for them. The evidence submitted, namely the insurance policy establishes that Burlington issued an insurance policy to Precise and to Precise only. Said policy does not list East or MD as additional insureds and does not provide for any coverage to any additional insureds. The affidavits submitted by Burlington further evince that the policy herein does not extend coverage to East or MD. Keizer's affidavit states that the policy herein does not name East or MD as insureds or additional insureds and that said policy does not contain any endorsements proving coverage to East or MD. This is further echoed by Simpson who additionally states that RSA had no authority to bind or issue any policy on behalf of Burlington. Accordingly, since it is well settled that when the language in an insurance policy is clear and unambiguous, the interpretation of said document and the determination of the rights and obligations of the parties is a question of law to be adjudicated by the court. The Court has interpreted the policy herein and has found that the same does not list East or MD as insureds. Since it is equally well settled that a party not named on the face of a policy is not entitled to coverage under said policy, Burlington has established prima facie entitlement to summary judgment insofar as it has demonstrated that the policy herein does not and did not afford coverage to East or MD.

The evidence submitted by the opponents to the motion, in opposition to the instant motion, fails to raise any issues of fact sufficient to preclude summary judgment. Preliminarily, the Court notes that none of the evidence submitted by the opponents to the instant motion was in admissible form. None of the documents submitted were certified or were presented with any foundation so as to accept them as business records. For that reason alone, Burlington's motion must be granted.

Additionally, East, MD and Westchester's opposition to the motion, asserting that the same is premature in the absence of discovery is without merit. It is well settled that the proponent of further discovery and denial of the motion for summary judgment must identify facts, which indeed give rise to triable issues of fact. Further, additional discovery should not be resorted to where the proponent of the additional discovery has failed to demonstrate that the discovery sought would produce relevant evidence. In this case, MD and East, fail to particularize what discovery they believe is pertinent to the issues herein, thereby raising issues of fact and leading to denial of the motion herein. Other than stating that other parties have documents relevant to the issues herein, Westchester similarly fails to particularize and identify what discovery if any warrants denial of the motion. As such, denial of the motion pursuant to CPLR §3212(f) is not warranted.

Notwithstanding the inadvisability of the documents tendered by East and MD, the Court notes that even if it had considered the same, namely, the certificate of insurance issued by RSA to Precise, listing East and MD as additional insureds, the same without more, fails to raise an issue of fact with regard to coverage. As a matter of law a certificate of insurance, which like the one [*10]presented herein, states that it is for informational purposes only does not raise an issue of fact with regard to the existence of insurance coverage. This is particularly true when the policy is produced and the proponent of coverage is not listed therein.

East and MD's argument that they are third-party beneficiaries of the policy between Precise and Burlington is also without merit. A review of the policy does not reveal any language which can be construed as an intent by Precise and Burlington to extend coverage to East and MD. The policy does not call for performance upon a third-party nor does it extend coverage to anyone else besides those listed in the declarations page and a narrow class of people, a class to which East and MD do not belong.

East and MD's argument that the "Insured Contract" provision somehow extends coverage to them is also without merit. First and foremost, a careful look at the policy herein evinces that it actually excludes coverage should Precise enter into an "Insured Contract." As such East and MD's argument fails for that reason alone. Further, a review of the policy reveals that even when coverage is afforded to an insured under an "Insured Contract," the coverage is afforded to the insured not the party from whom the insured assumes liability pursuant to a contract. As such, even if the policy herein afforded coverage for Precise's execution of an "Insured Contract," such coverage would be afforded to Precise and not East or MD. Accordingly, Burlington's motion for summary judgment is hereby granted on the grounds just discussed.

To the extent that Burlington's motion for summary judgment has been granted, the remainder of Burlington's motion, namely for severance is hereby denied as moot. It is hereby

ORDERED that the third-party complaint and any and all cross-claims be hereby dismissed with prejudice as to Burlington. It is further

ORDERED that Burlington's counterclaim be hereby dismissed, with prejudice. It is further

ORDERED Burlington serve a copy of this Order with Notice of Entry upon all parties within thirty days (30) hereof.

This constitutes this Court's decision and Order.

Dated : August 9, 2007

Bronx, New York

______________________________Nelson S. Roman, J.S.C.