Rivera v Tribeca White St., LLC
2019 NY Slip Op 01647 [170 AD3d 446]
March 7, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 1, 2019


[*1]
 Maura Rivera, Plaintiff,
v
Tribeca White Street, LLC, et al., Defendants, Everest Scaffolding, Inc., Respondent/Second Third-Party Plaintiff-Respondent. State National Insurance Company, Second Third-Party Defendant-Appellant, et al., Second Third-Party Defendant. (And a Third-Party Action.)

Gerber Ciano Kelly Brady LLP, New York (Joanna M. Roberto of counsel), for appellant.

Fuchs Rosenzweig, PLLC, New York (Alicia D. Sklan of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered March 29, 2018, declaring that second third-party plaintiff (Everest) is an additional insured under the policy issued to second third-party defendant R & S Construction Contracting, Inc. by defendant State National Insurance Company (hereinafter, Clarendon) and that Clarendon is required to defend R & S in the underlying action, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered December 22, 2017, which granted Everest's motion to renew its motion for summary judgment declaring in its favor and, upon renewal, granted the motion for summary judgment and so declared, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Given the merit of Everett's original motion for summary judgment (but for its technical defects) and the lack of prejudice to Clarendon, the motion court properly granted Everest's motion for renewal (see Mejia v Nanni, 307 AD2d 870, 871 [1st Dept 2003]).

The court correctly determined that Clarendon was obligated to defend Everett because the allegations of the underlying personal injury complaint suggest "a reasonable possibility of coverage" (see Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 15 NY3d 34, 37 [2010] [internal quotation marks omitted]). Concur—Renwick, J.P., Manzanet-Daniels, Tom, Kahn, Gesmer, JJ.