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Warnock Capital Corp. v. Hermitage Insurance Co.9/26/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, THOMAS A. ADAMS and WILLIAM F. MASTRO, JJ.
DECISION & ORDER
(Index No. 27361/02)
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's cross motion which was for summary judgment declaring that the appellant is obligated to provide first-party coverage to the plaintiff for property damage in an amount up to $250,000, and substituting therefor a provision granting that branch of the plaintiff's cross motion which was for summary judgment declaring that the appellant is obligated to provide first-party coverage to the plaintiff for property damage in an amount up to $200,000; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant Hermitage Insurance Company is obligated to defend and indemnify the plaintiff in the underlying action entitled O'Brien v Kanaris, pending in the Supreme Court, Kings County, under Index No. 42830/02, in an amount up to $1,000,000 and to provide first-party coverage to the plaintiff for property damage in an amount up to $200,000.
The plaintiff, Warnock Capital Corp. (hereinafter Warnock), purchases and rehabilitates parcels of improved realty for resale. The defendant Hermitage Insurance Company (hereinafter Hermitage) issued a commercial general liability policy, procured by the defendant Demonaco Agency, Inc. (hereinafter Demonaco), an insurance broker, which insured Warnock for personal injury claims in an amount up to $1,000,000 per occurrence for the period between April 13, 2001, and April 13, 2002. Demonaco placed the policy through the defendant Jersey Link, Inc. (hereinafter Jersey Link), a wholesale broker which produced business for Hermitage in accordance with a March 20, 1998, agreement. Pursuant to the "coverage extensions" provision of the commercial property coverage portion of the policy, coverage up to $250,000 was conditionally extended to the plaintiff's newly acquired property until either (1) 30 days after its acquisition, (2) Warnock reported the property's value to Hermitage, or (3) the policy expired. If Hermitage subsequently agreed to insure the parcel, a policy change endorsement would be issued and Warnock would be charged an additional premium.
On March 28, 2002, Warnock purchased premises located at 228 Beach 87th Street in Rockaway and Demonaco issued a binder temporarily extending coverage under the policy to the new property. It also submitted an application to Jersey Link for an endorsement to add the property to the policy. Jersey Link relayed the request to Hermitage, which notified Jersey Link on April 5, 2002, that Warnock's application was rejected.
Two days later, on April 7, 2002, the premises was severely damaged by fire, several occupants were injured, and an infant was killed. Warnock demanded coverage from Hermitage, which disclaimed on April 12, 2002. An action to recover damages for negligence and wrongful death, entitled O'Brien v Kanaris, was thereafter commenced against Warnock and others in Supreme Court, Kings County.
Warnock subsequently commenced this action seeking, inter alia, a declaration that Hermitage is obligated to defend and indemnify it in the underlying action and to provide first-party coverage to it for the amount of $250,000 in property damage. Demonaco moved
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