

Donato Realty, LLC v Utica First Ins. Co. (2017 NY Slip Op 00112)





Donato Realty, LLC v Utica First Ins. Co.


2017 NY Slip Op 00112


Decided on January 10, 2017


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 January 10, 2017

Tom, J.P., Richter, Saxe, Gische, Gesmer, JJ.


2689 152419/12

[*1]Donato Realty, LLC, et al., Plaintiffs-Respondents,
vUtica First Insurance Company, Defendant-Appellant.


Farber Brocks & Zane L.L.P., Garden City (Sherri N. Pavloff of counsel), for appellant.
Carroll, McNulty & Kull LLC, New York (Max W. Gershweir of counsel), for respondents.

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered on or about July 15, 2016, which granted plaintiffs' motion for summary judgment declaring that defendant is obligated to defend and indemnify plaintiff Donato Realty, LLC in the underlying personal injury action, and denied defendant's cross motion for summary judgment declaring that it is not so obligated, unanimously affirmed, with costs.
The lease agreement between plaintiff Donato's managing agent and the tenant required the tenant to maintain insurance for itself and Donato against "any liability arising out of the ownership, use, occupancy or maintenance of the demised premises and all areas appurtenant thereto," which includes the sidewalk (see Tower Ins. Co. of N.Y. v Leading Ins. Group Ins. Co., Ltd., 134 AD3d 510 [1st Dept 2015]).
Defendant argues that Donato is not covered for the underlying personal injury, pursuant to the additional insured endorsement in the tenant's policy, which excludes coverage for "any structural alteration" made on Donato's behalf. However, the testimonial evidence indicates an unrepaired structural defect, rather than a structural alteration (see Leading Ins. Group Ins. Co., Ltd. v Greenwich Ins. Co., 44 Misc 3d 435, 444 [Sup Ct, Kings County 2014]). Moreover, the underlying complaint does not allege that the trip and fall was the result of repairs that had been made on Donato's behalf.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 10, 2017
CLERK


