Upon the foregoing papers, plaintiff, The City of New York (City) moves for an order, pursuant to CPLR 3212, granting summary judgment in this declaratory judgment action against defendant, Philadelphia Indemnity Insurance Co. (Philadelphia). The summary judgment motion seeks a declaration that Philadelphia must defend the City in a federal court action in the Southern District of New York entitled Felix Vega v Larry Fox, et al., Docket No. 05 CV 2286 (the Vega lawsuit), and pay the City all past and presently incurred costs in defending this action.

Background

This case stems from a December 16, 2003 altercation between Felix Vega and Joseph Quinones, residents at the August Aichhorn Center for Adolescent Residential Care, a foster group home in Manhattan. That altercation spawned both the Vega lawsuit, which names [*2]the City and the Jewish Board of Family and Children's Services (JBFCS) as defendants,^[FN1] and in turn, this declaratory action to determine if Philadelphia must defend the City in the Vega lawsuit.

JBFCS had renewed its contract with the City's Administration for Children's Services on December 9, 2002 to provide general preventive child welfare services from January 1, 2003 through December 31, 2005. That agreement imposed at least a $1 million insurance requirement on JBFCS and obligated it to name the City as an additional insured with coverage "no narrower than that provided by ISO [i.e., Insurance Services Office] form CG 20-26" requiring coverage for liability "arising out of your [i.e., the insured's] operations or premises owned by or rented to you."

JBFCS, through its risk management advisor, FOJP Service Corporation, thereafter purchased a commercial general liability insurance policy from Philadelphia with maximum coverage of $1 million per occurrence for a twelve month period effective March 1, 2003. The Additional Insured Schedule of that policy identified the additional insured as "any person or organization with an insurable interest as respects the named insured." The certificate of insurance issued to the City by Frank Crystal & Company, the broker for this policy, states in this regard that "[t]he City of New York Administration for Children's Services is an additional insured with respect to its vicarious liability for the negligent acts of the insured and its employees in connection with [the] preventive services contract."

The City notified the Federation of Jewish Philanthropies' (FOJP's) general liability claims manager by facsimile transmission dated March 9, 2005 of its receipt of the summons and complaint in the Vega lawsuit and requested forwarding of those papers to the insurance carrier (Philadelphia), who it sought to defend the case. However, Philadelphia refused in its March 9, 2005 responsive letter to assume such defense. It alleged that JBFCS "had no involvement in this matter," that "Mr. Vega had no involvement with [JBFCS] for over five [*3]years prior to Dec. 16, 2003," and that "[t]he City has issues of culpability that only it can address." This declaratory judgment action has ensued.

The City notes that the allegations in the Vega lawsuit concern both child welfare services that JBFCS provided under its contract with the City as well as the City's own direct liability. Such allegations in the City's view trigger Philadelphia's duty to defend considering the City's alleged status as an additional insured under JBFCS' commercial general liability insurance policy. In addition, the City contends that no applicable exclusions to coverage exist in Philadelphia's policy, that Philadelphia has failed to raise whatever exclusions might exist and has thus waived them.

Philadelphia's Position

Philadelphia sees no duty to defend the City. It argues that the City has failed to establish its status as an additional insured under the terms of the policy issued to JBFCS and that no time limit bars this defense. The certificate of liability disclaimers,^[FN2] Philadelphia further argues, prevent that document, issued by a third party, from making the City an additional insured. Philadelphia contends in any event that the complaint inthe Vega case seeks to hold the City directly liable and that the certificate only references the City as "an additional insured with respect to its vicarious liability."

Insurance Law§ 3420 (d) requires an insurer's disclaimer "as soon as is reasonably possible."^[FN3] However, Philadelphia properly asserts that no disclaimer obligation applied herein. "Where [, as here,] a clause limits the circumstances in which a party is an additional insured under an insurance policy and the underlying claim falls outside the limited coverage provided, disclaimer pursuant to Insurance Law § 3420 (d) is not required" (National Union [*4]Fire Ins. Co. of Pittsburgh Pa. v Utica First Ins. Co., 6 AD3d 681, 682 [2004] [internal citations omitted]).

"A disclaimer is unnecessary when a claim does not fall within the coverage terms of an insurance policy"(Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 648 [2001] [internal citation omitted]). "Under those circumstances, the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed" (Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188 [2000]; see also Zappone v Home Ins. Co., 55 NY2d 131, 134 [1982] ["the failure to disclaim coverage does not create coverage which the policy was not written to provide"] [internal citation omitted]; Tribeca Broadway Associates, LLC v Mount Vernon Fire Ins. Co., 5 AD3d 198, 200-201 [2004] ["(i)nsofar as the claim fell outside of the policy's coverage, the carrier was not required to disclaim as to coverage that did not exist"] [internal citations omitted]).

Here, the alleged "noncoverage arose from a lack of inclusion, not a policy exclusion [and] a timely disclaimer of coverage was not required" (Continental Casualty Co. v Luhrs, 299 AD2d 357, 358 [2002]; see also Madera v Allstate Ins. Co., 12 Misc 3d 1162 (A) at *2 [2006]). No waiver of Philadelphia's defense to this declaratory judgment action therefore occurred and construing the additional insured provision of the policy determines Philadelphia's obligation.

"The party claiming insurance coverage bears the burden of proving entitlement . . . and is not entitled to coverage if not named as an insured or an additional insured on the face of the policy" (National Abatement Corp v National Union Fire Ins. Co. of Pittsburgh, PA., 33 AD3d 570, 570-571 [2006] [internal citations omitted]; see also Tribeca Broadway Assoc., LLC v Mount Vernon Fire Ins. Co., 5 AD3d at 200 ["a party that is not named an insured or an additional insured on the face of the policy is not entitled to coverage"] [internal citation omitted]; Thomson v Power Auth. of the State of NY, 217 AD2d 495, 496 [1995] ["the party seeking a declaration of coverage is obligated in the first instance to demonstrate the existence of coverage . . ."]). Hence, the burden falls on movant City to demonstrate its status as an additional insured under the description of an additional insured herein on the additional insured schedule. That schedule describes an additional insured as "any person or organization with an insurable interest as respects the named insured [JBFCS]."

The certificate of insurance, though, provides no help to the City in meeting its burden. "[A] certificate of insurance which expressly states that it is a matter of information only and confers no rights upon the certificate holder,' as does the certificate in this case [and the present case, see fn 2 herein], is insufficient, by itself, to show that such insurance has [*5]been purchased" (Trapani v 10 Arial Way Associates, 301 AD2d 644, 647 [2003] [internal citations omitted]; see also Moleon v Kreisler Borg Florman General Construction Co., Inc., 304 AD2d 337, 339 [2003] [where "the certificate (of insurance) contains a disclaimer which states that this certificate is issued as a matter of information only and confers no rights upon the certificate holder (and that) this certificate does not amend, extend, or alter the coverage afforded by the policies'(see again fn 2 herein) . . . the certificate is insufficient to establish that (the third-party plaintiff) is an additional insured"]; Penske Truck Leasing Co., L.P. v Home Ins. Co., 251 AD2d 478, 479 [1998] ["(i)t is well settled that a certificate of insurance with the aforementioned disclaimer language (namely, the language in the Moleon case, above and in fn 2 herein) is insufficient, by itself, to establish that the certificate holder is insured"] [internal citations omitted]). "A certificate of insurance . . . is not a contract to insure the designated party, nor is it conclusive proof, standing alone, that such a contract exists (Tribeca Broadway Associates, LLC v Mount Vernon Fire Ins. Co., 5 AD3d at 200).

Determining whether the City qualifies as an additional insured in this case thus involves examining the policy itself and the underlying contract between the City and JBFCS (see Sixty Sutton Corp. v Illinois Union Ins. Co., 34 AD3d 386, 2006 NY Slip Op 08886 at *3 [2006] ["(t)he four corners of an insurance agreement govern who is covered and the extent of coverage . . . [i]n addition, where a third party seeks the benefit of coverage, the terms of the contract must clearly evince such intent"] [internal citations omitted]; Greater New York Mut. Ins. Co. v Mutual Marine Office, Inc., 3 AD3d 44, 47 [2003] ["(t)o determine whether (the building owner) is an additional insured under MMO's policy for claims arising out of the collapse of the parking garage roof, it is necessary to look to the policy itself and the underlying lease"]).

Here, the underlying contract, as previously noted, required JBFCS to name the City as an additional insured with coverage "no narrower than that provided by ISO form CG 20-26" which provides coverage for liability "arising out of your [the insured's] operations." Such language focuses "upon the general nature of the operation in the course of which the injury was sustained" (Consolidated Edison Co. of New York, Inc. v U.S. Fidelity and Guar. Co., 263 AD2d 380, 382 [1999] quoting Consolidated Edison Co. v Hartford Ins. Co., 203 AD2d 83, 83 [1994]).

The policy's reference to "any person or organization with an insurable interest as respects the named insured" therefore logically references the City's interest in the general nature of JBFCS' operation from which the alleged liability arose. Such construction applies the Court of Appeals' instruction to "read an insurance policy in light of common speech' and the reasonable expectations of a businessperson" (Belt Painting Corp. v Tig Ins. Co., 100 NY2d 377, 383 [2003] [internal citations omitted]; see also Mostow v State Farm Ins. Cos., 88 NY2d 321, 326-327 [1996] ["the test to determine whether an insurance contract is ambiguous focuses on the reasonable expectations of the average insured upon reading the policy"] [internal citations omitted]). The construction also implements the Appellate [*6]Division, Second Department's guideline that "[i]n construing an insurance policy to determine the scope of coverage, courts apply the test of common speech and focus on the reasonable expectations of the average insured" (Allou Health & Beauty Care, Inc. v Aetna Cas. and Sur. Co., 269 AD2d 478, 480 [2000] [internal citations omitted]).

The additional insured provision on its face therefore appears unambiguous and reasonably susceptible to only this one meaning under relevant interpretation principles (see Greenfield v Philles Records, Inc., 98 NY2d 562, 569-570 [2002]). However, Philadelphia's reading of the additional insured clause as not specifically identifying the City as an additional insured, in any event, would only create an ambiguity, and "where there is ambiguity with respect to existence of coverage, doubt is to be resolved in favor of the insured and against the insurer" (Handelsman v Sea Ins. Co., 85 NY2d 96, 101 [1994], rearg denied 85 NY2d 924 [1995]; see also Mostow v State Farm Ins. Cos., 88 NY2d at 326 ["ambiguities in an insurance policy should be construed in favor of the insured and against the insurer, the drafter of the policy language"] [internal citations omitted]; Bedford Cent. School Dist. v Commercial Union Ins., 295 AD2d 295, 296 [2002] ["subject insurance policy contains provisions which are ambiguous and therefore must be construed against the insurer, the drafter of the document"] [internal citations omitted]).

Furthermore, the "additional insured endorsement is an addition, rather than a limitation of coverage" (National Abatement Corp v National Union Fire Ins. Co. of Pittsburgh, PA., 33 AD3d at 571 [internal citations omitted]; see also Tishman Const. Corp. of New York v CNA Ins. Co., 236 AD2d 211, 211 [1997] ["the (additional insured clause) was not to be read as an exclusion of coverage . . . since, as an endorsement, it was an addition to coverage, not a limitation"]; City of New York v Westchester Fire Ins. Co., 6 Misc 3d 1027 (A) at *10 [2004]). Consequently, JBFCS' contract with the City, the insurance policy itself and principles for resolving ambiguity, separately and collectively, bring the City within Philadelphia's commercial general liability insurance policy herein as an additional insured.

Here, the previously footnoted allegations in the Vega complaint (see fn 1) allege specific wrongdoing by JBFCS arguably arising out of its operations. More specifically, the complaint, which identifies JBFCS (in paragraph 20) as "provid[ing] foster care and services in contract with the City" claims that JBFCS and other defendants including the City failed to properly supervise Vega, other members of the group home and the Aichhorn Center (paragraph 27); that "but for the improper supervision" by JBFCS and other defendants including the City, Vega would not have suffered injuries from the altercation (paragraph 31); that JBFCS and all defendants "had a duty to [Vega] to provide a safe and secure living [environment]" (paragraph 94); and that Vega's injuries resulted from JBFCS' and all defendants' actions or omissions (paragraphs 95-99). JBFCS' alleged wrongdoing from its operations, in turn, potentially makes the City vicariously liable and implicates the City's covered insurable interest in JBFCS under the Philadelphia policy herein. The allegations in the Vega complaint, in other words, fall within the scope of risks concerning the City covered by Philadelphia's policy (Allcity Ins. Co. v Fisch, 32 AD3d 407, 408 [2006].

Indeed, the City, as an additional insured, "enjoys the same protection as the named insured" (Pecker Iron Works of NY v Traveler's Ins. Co., 99 NY2d 391, 393 [2003]. The Vega complaint presents a potential basis for JBFCS' liability within the scope of the City's coverage under the Philadelphia policy (i.e, arising out of JBFCS' operations). Consequently, Philadelphia must defend the City in the Vega case (see BP Air Conditioning Corp. v One Beacon Ins. Group, 33 AD3d 116, 121 [2006] [additional insured general contractor entitled to defense where amended complaint alleged injuries caused by subcontractor's negligence and policy covers general contractor for "liability arising out of (subcontractor's) ongoing operations performed for (general contractor)"].

In addition, Philadelphia must defend the City regarding the entire action including against allegations of the City's own, direct liability in view of the Court of Appeals holding that "[i]f any of the claims against [an] insured arguably arise from covered events, the insurer is required to defend the entire action" (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d at 443 [internal citation and internal quotation marks omitted]).

This declaratory judgment action therefore now requires entry of an appropriate judgment (see 200 Genesee St. Corp. v City of Utica, 6 NY3d 761, 762 [2006] and Reyes v Diamond State Ins. Co., ___ AD3d ___, 2006 NY Slip Op 10042 at *2 [2006]) considering that the City has met its burden of proving entitlement to coverage and the applicability of coverage and Philadelphia has failed to raise a triable issue of fact.

However, the City has failed to submit a sufficient affidavit detailing the services performed and the prevailing hourly rate for similar attorney and paralegal work performed [*8]in the community. Such submission, as the Appellate Division, Second Department recently discussed in SO/Bluestar, LLC v Canarsie Hotel Corp., 33 AD2d 986, 988 [2006], would enable the court to ascertain the reasonableness of the overall fees and the possible need for a hearing. Accordingly, it is

ORDERED that the City's summary judgment motion is granted; and it is further

ORDERED, ADJUDGED and DECLARED that Philadelphia is obligated to defend the City in the underlying federal court action in the Southern District of New York, entitled Felix Vega v Larry Fox, et al., Docket No. 05 CV 2256; and it is further

ORDERED, ADJUDGED and DECLARED that Philadelphia must reimburse the City for all attorneys' fees expended or owed by the City in defense of the Vega case; and it is further

ORDERED, ADJUDGED and DECREED that the issue of the attorney's fees and costs to be awarded to the City is set down before a Judicial Hearing Officer to hear and report.

This constitutes the decision, order and judgment of this court.

ENTER,

J.S.C.