        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1223
CA 15-00123
PRESENT: SCUDDER, P.J., SMITH, CENTRA, WHALEN, AND DEJOSEPH, JJ.


TRAVELERS INSURANCE COMPANY, AS SUCCESSOR IN
INTEREST BY MERGER TO GULF INSURANCE COMPANY,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BENDERSON DEVELOPMENT COMPANY, LLC, DANFB, LLC,
BENDERSON DEVELOPMENT COMPANY, INC., BENDERSON
PROPERTIES, INC., DEFENDANTS-APPELLANTS,
ET AL., DEFENDANT.
(APPEAL NO. 2.)


GALBO & ASSOCIATES, BUFFALO (RICHARD A. GALBO OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

KATZ & RYCHIK P.C., NEW YORK CITY (ABE M. RYCHIK OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Joseph
R. Glownia, J.), entered August 25, 2014. The judgment, among other
things, awarded plaintiff the sum of $190,068.79 as against defendant
Benderson Development Company, Inc., now known as Benderson
Properties, Inc.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking the amount
of $190,068.79 from defendants under a policy of insurance provided by
plaintiff to defendants. As relevant here, defendants are in the
business of owning, leasing, managing, and maintaining commercial
properties. For the policy period of March 31, 2003 through March 31,
2004, defendants were covered by an excess commercial general
liability insurance policy issued by plaintiff. The policy included a
$100,000 Self-Insured Retention (SIR) Endorsement and a $100,000
Insured’s Contribution (IC) Endorsement. Before the policy limits
would be applied toward any covered event, defendants were obligated
to pay $100,000 under each of the endorsements, for a total of
$200,000.

     In July 2002, defendants retained Lancer Glass Company (Lancer)
as a contractor, and defendants were added as an additional insured on
a Lancer policy. The Lancer policy provided $1,000,000 in primary
coverage as well as additional, excess coverage. In 2003, a Lancer
                                 -2-                          1223
                                                         CA 15-00123

employee was injured and brought an action against defendants (Lancer
litigation), which settled for $1,800,000. Lancer’s primary coverage
was $1,000,000 and its excess coverage was $400,000. After covering
the remaining $400,000, plaintiff demanded that defendants reimburse
plaintiff $190,068.79, which represented the $100,000 obligation under
each endorsement minus a credit owed to defendants. Defendants
refused, contending that the additional insured coverage provided by
the Lancer policy satisfied defendants’ obligations under the SIR and
IC endorsements.

     Similarly, in 2003 defendants were an additional insured on a
liability insurance policy owned by a tenant in one of defendants’
properties, Sally Beauty Systems Group (Sally Beauty). In 2003, a
Sally Beauty employee was injured on that property and brought an
action against defendants (Sally litigation). That action settled for
$1,600,000, and the Sally Beauty policy paid $1,000,000. Plaintiff
paid $400,000 of the $600,000 balance, but refused to pay the
remaining $200,000, citing defendants’ obligations under the
endorsements.

     Plaintiff commenced this action against defendants for the
outstanding $190,068.79 from the Lancer litigation, and defendants
counterclaimed for the $200,000 they paid as a result of the Sally
litigation. Supreme Court granted plaintiff’s motion seeking summary
judgment on the amended complaint and summary judgment dismissing the
counterclaim. We affirm.

     “To be entitled to summary judgment, the moving party has the
burden of establishing that its construction of the [contract] is the
only construction which can fairly be placed thereon” (Nancy Rose
Stormer, P.C. v County of Oneida, 66 AD3d 1449, 1450 [internal
quotation marks omitted]). Here, plaintiff met that burden. Pursuant
to the plain and unambiguous language of the SIR endorsement,
defendants agreed “not to insure the ‘self-insured retention’ without
[plaintiff’s] knowledge and permission,” and plaintiff submitted proof
establishing that no such permission was requested. Defendants failed
even to contend that permission was granted in regard to either the
Lancer or Sally litigation and thus failed to raise a triable issue of
fact with respect thereto. Without such permission, the plain terms
of the policy prohibit additional insured coverage from satisfying the
SIR endorsement. Likewise, pursuant to the plain and unambiguous
terms of the IC endorsement, that endorsement, as plainly stated in
the policy, applies to the policy limits. Because the policy is an
excess rather than a primary insurance policy, the policy limits are
not applied until all additional insured coverage has been exhausted.
Consequently, any additional insured coverage would necessarily be
exhausted before defendants’ obligation under the IC endorsement was
triggered.



Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
