National Union Fire Insurance of Pittsburgh v. Ferrell & Myers, Inc.

Judgment, Supreme Court, New York County (Louis B. York, J.), entered October 22, 2004, which, after a nonjury trial, declared plaintiff obligated to defend and indemnify defendants Ferrell & Myers and Dwight Myers with respect to certain personal injury and wrongful death actions, unanimously affirmed, with costs. The injuries occurred during a spectator stampede outside a celebrity basketball game, held at City College in December 1991, at which the teams were to be coached by defendants Dwight “Heavy D” Myers and Sean “Puff Daddy” Combs. The trial court found “no question that the policy covers Heavy D as an entertainer.” The court rejected the argument that Endorsement C of the policy specifically limits coverage to claims against the corporate entity (Ferrell & Myers) when acting as “an entertainer, theatrical manager &/or agent,” whereas Heavy D was acting only in an individual capacity. Plaintiff contends that rationally interpreted, Endorsement C should be limited to officers or employees of the corporation who were engaged in its business interests. Because this argument is raised for the first time on appeal, we decline to address it (see Dinneny v Allstate Ins. Co., 295 AD2d 797, 798-799 [2002]; Matter of ELRAC, Inc. v Edwards, 270 AD2d 414, 415 [2000]). Concur—Buckley, P.J., Marlow, Sweeny, Catterson and McGuire, JJ.