City of New York v. Zurich American Insurance

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 22, 2005, which, to the extent appealed from as limited by the briefs, denied defendant’s motion for renewal of its prior motion for summary judgment, and sua sponte declared defendant obligated to defend plaintiff in an underlying personal injury action as an additional insured under the subject policy and to reimburse plaintiff for litigation expenses, including reasonable attorneys’ fees, affirmed, without costs. The stipulation discontinuing the underlying personal injury claims against defendant’s primary insured is not dispositive of defendant’s duty to defend plaintiff as an additional insured under the policy. “[T]he duty of an insurer to defend is broader than its duty to indemnify” (Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141, 145 [2000]). While the stipulation upon which defendant relies precludes any further claim by the underlying plaintiffs against the insured contractor, it does not by its terms preclude a claim that plaintiff failed to properly inspect or supervise the work of the insured contractor. Nor does the stipulation or any other documentation submitted by defendant establish as a conceded or uncontested fact that the accident was unrelated to the contractor’s work. Accordingly, defendant failed to establish a right to the relief it sought. Based upon the submissions to the IAS court, the declaration that defendant is obligated to defend plaintiff in the underlying personal injury action was proper. Concur—Andrias, J.E, Saxe, Williams and Sweeny, JJ.