J.W. Mays, Inc. v. Liberty Mutual Insurance Co.J.W. Mays, Inc. v. Liberty Mutual Insurance Co.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
REINALDO E. RIVERA, J.P. MARK C. DILLON FRANCESCA E. CONNOLLY ANGELA G. IANNACCI, JJ.
William A. Shilling, Jr., P.C., Carmel, NY (Michael V. Caruso of counsel), for appellant.
Vogrin & Frimet, LLP, New York, NY (Michael J. Frimet of counsel), for respondents.
DECISION & ORDER
In an action, inter alia, for a judgment declaring that the defendants are obligated to defend and indemnify the plaintiff in an underlying action entitled D. Owens Electric, Inc. v J.W. Mays, Inc., commenced in the Supreme Court, Dutchess County, under Index No. 80001/2014, the plaintiff appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Kings County (Knipel, J.), dated May 1, 2015, as granted that branch of the defendants’ motion pursuant to
ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.
The plaintiff, who is the owner of a mall, and the nonparty D. Owens Electric, Inc. (hereinafter Owens), entered into several construction contracts, including a contract for work on the mall‘s roof. Owens, as general contractor, subcontracted the roofing work to the nonparty PJ Exteriors, Inc., which, the plaintiff alleged, performed defective roofing work. The plaintiff terminated the work before completion and allegedly failed to abide by the terms of payment under the contracts. Owens commenced an action against the plaintiff to recover damages for breach of contract and unjust enrichment, and to foreclose on mechanic‘s liens (hereinafter the Owens action). Pursuant to the contracts, Owens named the plaintiff as an additional insured under a commercial general liability policy issued by Peerless Insurance Company (hereinafter Peerless) and an umbrella policy issued by Excelsior Insurance Company (hereinafter Excelsior). The plaintiff alleges that Peerless is a member of Liberty Mutual Insurance Company. Coverage for an additional insured under the policies was triggered only with respect to liability from “bodily injury,” “property damage,” or “personal and advertising injury” caused in whole or in part by the acts or omissions of the additional insured or those acting on the additional insured‘s behalf. The plaintiff commenced the instant action seeking a judgment declaring that
“The general rule is that a commercial general liability insurance policy does not afford coverage for breach of contract, but rather for bodily injury and property damage” (Mid-Hudson Castle v P.J. Exteriors, 292 AD2d 355, 356; see Structural Bldg. Prods. Corp. v Business Ins. Agency, 281 AD2d 617). To hold otherwise would render an insurance carrier a surety for the performance of its insured‘s work (see Structural Bldg. Prods. Corp. v Business Ins. Agency, 281 AD2d at 619). The determination of an insurer‘s duty to defend must be drawn from allegations of the underlying complaint (see Parkset Plumbing & Heating Corp. v Reliance Ins. Co., 87 AD2d 646, 647). Here, the complaint in the Owens action sounds exclusively in breach of contract and unjust enrichment, and seeks to foreclose on mechanic‘s liens. There is no claim for bodily injury, property damage, or personal and advertising injury as is required to trigger coverage under the policies herein. Accordingly, the Supreme Court properly granted that branch of the defendants’ motion pursuant to
The Supreme Court also properly denied the plaintiff‘s cross motion for leave to amend the complaint. Although leave to amend should be freely given in the absence of prejudice or surprise to the opposing party (see
RIVERA, J.P., DILLON, CONNOLLY and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court