L&B Estates, LLC v. Allstate InsuranceL&B Estates, LLC v. Allstate Insurance
L&B ESTATES, LLC, Respondent, v ALLSTATE INSURANCE, Aрpellant, et al., Defendant. [897 NYS2d 188]—
In an action, inter alia, to recover damages for breach of contract and for a judgment declaring that L&B Estates, LLC, is an additional insured under a certain policy of insurance issued by the defendant Allstate Insurance and that the defendant Allstate Insurance is obligated, as the primary insurer, to defend and indemnify L&B Estates, LLC, in an underlying personal injury action entitled Coddett v L&B Estates, LLC, pending in the Supreme Court, Kings County, under index No. 33035/06, the defendant Allstate Insurance appeals, as limited by its brief, from so much of an order of the Suрreme Court, Kings County (Knipel, J.), dated June 10, 2009, as granted those branches of the cross motion of L&B Estates, LLC, which were for summary judgment on the complaint
Ordered that the order is modified, on the law, by deleting the provisions thereof granting those branches of the cross motion of L&B Estаtes, LLC, which were for summary judgment on so much of the complaint as sought to recover damages against the defendant Allstate Insurance and declaring that the defendant Allstate Insurance is the primary insurer and, therefore, is obligated to defend and indemnify L&B Estates, LLC, in the underlying action; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant, upon searching the record, summary judgment is awarded to the defendant Allstate Insurance dismissing so much of the complaint as sought to recover damаges against it, and declaring that the defendant Allstate Insurance is not the primary insurer, that the policy of insurance issued by the defendаnt Allstate Insurance provides coverage excess to the coverage provided to L&B Estates, LLC, under a policy issued by United National Specialty Insurance Company, and that, therefore, the defendant Allstate Insurance is not obligated to defend or indemnify L&B Estates, LLC, in the underlying action unless the obligation of that defendant to provide excess coverage is triggered, and the mattеr is remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the defendant Allstate Insurance is not the primary insurer, that the policy of insurance issued by the defendant Allstate Insurance provides coverage excess to the coverage provided to L&B Estates, LLC, under a policy issued by United National Specialty Insurance Company, and that, therefore, the defendant Allstate Insurance is not obligated to defend or indemnify L&B Estates, LLC, in the underlying action unless the obligation of that defendant to providе excess coverage is triggered.
In November 2005 Tilma Coddett allegedly was injured when she tripped and fell as a result of an alleged defect in the sidewalk in front of the premises. In June 2006 notice of Coddett‘s claim against L&B and Century was tenderеd on their behalf to Allstate, which did not immediately respond. In October 2006 Coddett commenced an action against L&B and Century, seeking tо recover damages for her injuries. In May 2007 Allstate rejected the tender of the claim insofar as made against L&B on the ground that L&B was not an additional insured under the Allstate policy since Coddett‘s claim did not arise “out of the ownership, maintenance or use of that part оf the premises shown in the Declarations as leased to [Century].” L&B commenced this action, seeking, inter alia, a judgment declaring that it was entitled to a defense and indemnification from Allstate as an additional insured under the policy, as well as damages for breаch of contract against Allstate and Century. L&B eventually moved for summary judgment on the complaint against Allstate and Century, and the Suprеme Court granted L&B‘s motion. We modify.
L&B established its prima facie entitlement to judgment as a matter of law against Allstate by submitting, among other things, the Allstate policy, which established that it was an additional insured with respect to Coddett‘s claim, and that Allstate had refused to provide coverаge. Inasmuch as
In opposition, however, Allstate established, as a mattеr of law, that its coverage of L&B under the Allstate policy was excess to the coverage provided to L&B under the United policy. When a policy provides only excess coverage, the duty to defend or indemnify is not triggered until coverage under the primary policy has been exhausted or otherwise terminated (see Great N. Ins. Co. v Mount Vernon Fire Ins. Co., 92 NY2d 682, 686-687 [1999]; Sport Rock Intl., Inc. v American Cas. Co. of Reading, Pa., 65 AD3d 12, 20 [2009]; Osorio v Kenart Realty, Inc., 48 AD3d 650, 653 [2008]). Consequently, upon searching the record, Allstate is entitled to summary judgment declaring that it is not the primary insurer, that the coverage it provided to L&B is excess to that provided by the United policy, and that, therefor, it was not obligated to defend or indemnify L&B in the underlying action unless its obligated to provide excess coverage is triggerеd.
The parties’ remaining contentions either are without merit or need not be addressed in light of our determination.
Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that L&B is an additional insured under the Allstate policy, that Allstate is not the primary insurer, that the coverage provided to L&B under the Allstate poliсy is excess to the coverage provided to L&B under the United policy, and that, therefore, Allstate is not obligated to defend or indemnify L&B in the underlying action unless its obligation to provide excess coverage is triggered (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]; Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d 596 [2010]).
Fisher, J.P., Angiolillo, Leventhal and Lott, JJ., concur.