In this construction accident case, Defendant, an insurance company (“XYZ”) moves for an order: (1) pursuant to CPLR§3211(a)(1) and (7), dismissing the summons and complaint against XYZ, together with any and all cross-claims asserted or to be asserted against XYZ; and (2) pursuant to CPLR§8101 and 22 NYCRR §130-1.1, awarding XYZ its costs, including reasonable attorney fees, on this injury motion. XYZ’s motion is decided as hereinafter indicated.
The relevant facts are as follows: Mr. F claims that he was injured on May 26, 2003, at a construction site at XXX East Tremont Avenue, Bronx, New York, when he was caused to fall off a scaffold as a result of negligence by certain parties. On December 7, 2004, Mr. F commenced an action to recover monetary damages for injury allegedly sustained in the aforesaid accident (the “Mr. F lawsuit”). By letter, dated February 8, 2005, the law firm of FCC, LLP, filed a claim on behalf of its client, Rx Construction Co., Inc. (“Rx”), a defendant in the Mr. F lawsuit, demanding that XYZ defend and indemnify Rx in that action (“Tender Letter”).
More specifically, the Tender Letter asserts that, on May 26, 2003, Mr. F was injured in the course of his employment with XYZ’s insured, CCI; and that defendant CCI (as subcontractor) had entered into a contract with Rx, which contained a defense and indemnification provision in favor of Rx, as well as a provision requiring CCI to procure and maintain commercial general liability insurance and commercial umbrella, endorsed to name Rx as an additional insured on a primary and non-contributing basis.
XYZ disclaimed coverage by sending two letters; both dated March 7, 2005. The first letter was addresses to CCI. That letter disclaimed coverage based upon the Employee Exclusion and the Contractual Liability Exclusion. The second letter was addressed to Rx’s attorneys. This letter disclaimed coverage, stating that a copy of the denial letter to CCI Construction, Inc., which should be self-explanatory, was enclosed, and that the policy provisions cited as the basis for denial of CCI Construction Inc.’s claim also apply to Rx.
On September 15, 2009, Rx and AAA Insurance Company (“AAA”) commenced this action against CCI and XYZ, seeking, inter alia, a declaratory bite judgment that XYZ must afford additional insured coverage to CCI, contractual indemnification to Rx and AAA, and reimbursement for all attorney’s fees incurred as a result of the Mr. F lawsuit.
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