Daily News, L.P. v. OCS Security, Inc.

| N.Y. App. Div. | Feb 20, 2001

—In an action, inter alia, for a judgment declaring that the defendant American Modern Home Insurance Company is obligated to defend and indemnify the plaintiffs Daily News, L.P., and Plant Partners, L.P., in an action entitled Morley v Daily News, pending in the Supreme Court, Kings County, under Index No. 29766/96, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated July 7, 1999, as denied those branches of their motion which were for summary judgment declaring that the defendant American Modern Home Insurance Company is obligated to indemnify the plaintiffs Daily News, L.P., and Plant Partners, L.P., in the underlying personal injury action, and that the defendant OCS Security, Inc., breached its contract to purchase insurance naming the plaintiffs Daily News, L.P., and Plant Partners, L.P., as additional insureds, and the defendants cross-appeal from stated portions of the same order.

Ordered that the cross appeal is dismissed as abandoned; and it is further,

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment declaring that American Modern Home Insurance Company is obligated to indemnify the plaintiffs Daily News, L.P., and Plant Partners, L.P., in the action entitled Morley v Daily News, pending in the Supreme Court, Kings County, under Index No. 29766/96, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate judgment; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

The Supreme Court properly determined that American Modem Home Insurance Company (hereinafter AMHICO) was obligated to defend the plaintiffs Daily News, L.P. (hereinafter the Daily News), and Plant Partners, L.P. (hereinafter Plant Partners), pursuant to the insurance policy issued by AMHICO to the defendant OCS Security, Inc. (hereinafter OCS) which named the Daily News as an “additional insured,” but only “with respect to their liability arising out of ‘your work’ for that insured by or for you.” “Your work” was defined as “[w]ork or operations performed by you or on your [be] half’ and “[m]ateríais, parts or equipment furnished in connection with such work or operations.”

The injured plaintiff in the underlying personal injury action, a visitor to the Daily News facility, was injured when he was struck by a descending elevator door operated by an employee of OCS while on his lunch break. The Daily News had hired OCS to provide security guard services at its facility. Although the OCS employee was on his lunch break when the accident occurred, because his work necessarily required him to use the elevator to perform his job and to reach and leave his workplace, the injuries in the underlying action arose out of the work performed by OCS for the Daily News (see, O’Connor v Serge El. Co., 58 NY2d 655). Thus, pursuant to the endorsement in the policy, the Daily News and Plant Partners are entitled to indemnity from AMHICO.

In light of our determination, we need not reach the plaintiffs’ remaining contention. Ritter, J. P., Krausman, Mc-Ginity and Smith, JJ., concur.