| National Union Fire Ins. Co. of Pittsburgh, PA v 221-223 W. 82 Owners Corp. |
| 2014 NY Slip Op 06377 |
| Decided on September 25, 2014 |
| Appellate Division, First Department |
| 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. |
Decided on September 25, 2014
Sweeny, J.P., Moskowitz, DeGrasse, Manzanet-Daniels, Clark, JJ.
13039 301659/11
v
221-223 West 82 Owners Corp., et al., Defendants, JRP Contracting, Inc., Defendant-Respondent.
McGaw, Alventosa & Zajac, Jericho (Joseph Horowitz of counsel), for appellant.
Law Offices of Alana Barran, P.C., New York (Alana Barran of counsel), for respondent.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered December 13, 2013, which, to the extent appealed from as limited by the briefs, denied plaintiff National Union's motion for summary judgment against defendant JRP Contracting, Inc., with leave to renew, unanimously reversed, on the law, with costs, the motion granted, and it is declared that National Union has no duty to defend or indemnify defendant JRP Contracting, Inc. in the underlying personal injury action.
National Union was entitled to rely on the underlying plaintiff's bill of particulars to make a prima facie showing that the ligament and meniscal tears he allegedly sustained do not qualify as "grave injur[ies]" within the meaning of Workers' Compensation Law § 11 (see Marshall v Arias, 12 AD3d 423, 424 [2d Dept 2004]). Indeed, the underlying plaintiff failed to allege that he had lost the use of his knee, let alone the use of his leg (see Fleischman v Peacock Water Co., Inc., 51 AD3d 1203, 1205 [3d Dept 2008]). JRP produced no evidence indicating that further discovery will yield material and relevant evidence (see id.). Accordingly, National Union has no obligation to defend or indemnify JRP for the underlying common-law indemnification and contribution claims (cf. Liberty Mut. Ins. Co. v Insurance Co. of State of Pa., 43 AD3d 666, 667-668 [1st Dept 2007]). Further, National Union is not obligated to defend or indemnify JRP for the underlying contractual indemnification claim, since its policy clearly excludes coverage for "liability assumed under a contract."
JRP's argument that it will be prejudiced if National Union withdraws from its defense is [*2]unavailing, as National Union expressly reserved its rights to disclaim coverage, and JRP failed to demonstrate prejudice (see General Acc. Ins. Co. v 35 Jackson Ave. Corp., 258 AD2d 616, 618 [2d Dept 1999]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 25, 2014
CLERK