By notice of motion filed June 4, 2009, plaintiffs American Home Assurance, Trump Empire State Partners, Trump Empire State, Inc. and Helmsley-Spear Inc., (collectively plaintiffs) move pursuant to CPLR §§ 3001 and 3212 for summary judgment declaring their rights to coverage under an insurance policy issued by defendant Zurich Insurance Company (Zurich). Defendants Zurich and Hatzel & Buehler, Inc. (Hatzel) cross-move [*2]pursuant to CPLR § 3212 for an order declaring that Zurich has no duty to defend or indemnify plaintiffs.

On February 11, 2002, Luis Cayetano allegedly suffered personal injuries in an accident at a construction project at the Empire State Building while working for Hatzel, a contractor. At that time Trump Empire State Partners was the owner of the Empire State Building, Helmsley-Spear Inc. was the managing agent of the property and Trump Empire State, Inc. was a general partner of Trump Empire State Partners.

On February 6, 2004, Luis Cayetano commenced an action in Kings County Supreme Court under index number 4074/2004 against Trump Empire State Partners, Trump Empire State, Inc., and Helmsley-Spear Inc. for damages (Cayetano action). American Home Assurance has provided a defense and indemnification to Trump Empire State Partners, Trump Empire State, Inc. and Helmsley-Spear Inc. as defendants in Mr. Cayetano's personal injury action. By verified answer dated May 26, 2004, Trump Empire State Partners, Trump Empire State, Inc. and Helmsley-Spear Inc. joined issue in the Cayetano action. In October of 2004 Trump Empire State Partners, Trump Empire State, Inc. and Helmsley-Spear Inc. commenced a third party action against Zurich. That third party action was discontinued pursuant to a stipulation which has no bearing on the claims asserted by plaintiffs and defendants in the present action.

Plaintiffs commenced the present action seeking a declaratory judgment that defendants are required to afford coverage for defense and indemnity in the Cayetano action.

Plaintiffs' motion papers consist of an attorney's affirmation and ten annexed exhibits labeled A through J. Exhibit A is the pleadings in the present action. Exhibit B is plaintiffs' response to defendants' interrogatories. Exhibit C is the pleadings in the Cayetano action. Exhibit D is the contract between Helmsley-Spear Inc. and Hatzel Exhibit E is the insurance policy issued by Zurich to Hatzel. Exhibit F is a letter dated April 9, 2002 from AIG, as a representative of American Home Assurance, to Zurich. Exhibit G is Zurich's letter in response to AIG dated April 9, 2002. Exhibit H is the transcript of the deposition of Joseph D. Clerici, the assistant director of operations at the Empire State Building, conducted on December 3, 2007. Exhibit I is a transcript of the deposition of James Mulvihill, a vice-president at Hatzel, conducted on January 14, 2008. Exhibit J is a transcript of the deposition testimony of Luis Cayetano conducted on December 12, 2005.

Defendants' cross-motion papers consist of an attorney's affirmation in opposition to the motion and in support of the cross motion, a memorandum of law and seven annexed exhibits labeled 1 through 7. Exhibit 1 is a purchase order for electrical material and labor by Hatzel for Helmsley-Spear Inc. Exhibit 2 is the aforementioned third-party [*3]summons and complaint which was discontinued by stipulation. Exhibit 3 is Hatzel's verified answer in the discontinued third party action. Exhibit 4 is a letter dated November 19, 2004 from Zurich to plaintiffs' attorney acknowledging receipt of the third party summons and complaint and advising the plaintiffs that were not entitled to insurance coverage from Zurich. Exhibit 5 is the aforementioned stipulation of discontinuance of the third party action. Exhibits 6 and 7 contain a decisions issued by New York Supreme Court Justices in other actions.

Plaintiffs submitted an attorney's affirmation in opposition to defendants' cross motion and in reply to defendants' affirmation in opposition to plaintiffs' motion for summary judgment. Annexed to the attorney's affirmation and labeled Exhibit A is a copy of an appellant's brief in a different case between different parties.

CPLR § 3001 states, in pertinent part: "The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. If the court declines to render such a judgment it shall state its grounds."

A motion for summary judgment may be granted only when there is no doubt as to the absence of any triable issue of material fact (Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept. 2005]. "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v. Bell, 222 AD2d 547 [2nd Dept. 1995]). A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Napolitano v. Suffolk County Dept. Of Public Works, 65 AD3d 676 [2nd Dept 2009]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v. Prospect Hosp., supra ; Zuckerman v. City of New York 49 NY2d 557, 560 [1980]).

Plaintiffs contend that defendants' cross motion for summary judgment should be denied in its entirety on the grounds that it is untimely. It is undisputed that plaintiffs' motion for summary judgment is timely. The defendants' cross motion and plaintiffs' motion concern an identical issue, namely, the extent of coverage afforded by the insurance policy issued by Zurich to Hatzel. "An untimely cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds" (See, Grande v. Peteroy, 39 AD3d 590 [2nd Dept. 2007]). Thus, defendants' cross motion will be considered on the merits.

In determining a dispute concerning insurance coverage, this court must "look to the language of the policy" issued. In this case, that policy is the one issued by Zurich to [*4]Hatzel (See, Consolidated Edison Co. Of NY v. Allstate Ins. Co., 98 NY2d 208, 221 [2002]).

Thus, the burden is on plaintiffs to make a prima facie showing that they are entitled to coverage from defendant Zurich. An examination of the motion papers demonstrates the following undisputed facts. Prior to the commencement of Mr. Cayetano's work at the Empire State Building, a contract was entered into between Hatzel and the Helmsley-Spear Inc. whereby Hatzel agreed to perform certain electrical work on the Empire State Building. This contract expressly required Hatzel to procure insurance which would cover as additional insureds both Trump Empire State, Inc. and Helmsley-Spear Inc. as well as three other entities which are not parties to the present action. The contract did not expressly require that its insurance policy cover Trump Empire State Partners as an additional insured.

Hatzel procured insurance from Zurich to cover its work at the Empire State Building pursuant to its agreement with Helmsley-Spear Inc. The policy period of this insurance was for the period from December 31, 2001 to March 1, 2002. Hence, Mr. Cayetano's accident occurred while the policy issued by Zurich to Hatzel was in effect.

The express language of the Zurich policy extends coverage to "any person or organization with whom you [the named insured, Hatzel] have agreed in a written contract to provide insurance as is afforded under this policy". By letter dated April 9, 2002, American Insurance Group Claims Services ("AIG Claims"), identified itself as a representative of American Home Assurance and notified Zurich of the Cayetano accident. It also requested that Zurich "take over the handling of this claim on behalf of [Helmsley-Spear Inc.]". The letter did not mention plaintiffs Trump Empire State Partners or Trump Empire State, Inc. By letter dated July 29, 2002, Zurich responded and disclaimed coverage.

By these undisputed facts, plaintiffs have met their prima facie burden of demonstrating that Trump Empire State, Inc. and Helmsley-Spear Inc. are entitled to coverage from Zurich. However, plaintiffs have failed to meet their prima facie burden with regard to plaintiff Trump Empire State Partners.

The parties do not dispute that Hatzel contracted with Helmsley-Spear Inc. to perform certain work on the Empire State Building. Their contract expressly required Hatzel to procure insurance which would cover as additional insureds Trump Empire State, Inc. and plaintiff Helmsley-Spear Inc. Their contract did not expressly require Hatzel to procure insurance which would cover Trump Empire State Partners as an additional insured. Pursuant to its contractual obligation, Hatzel procured its insurance policy from defendant Zurich. The express language of the Zurich policy extends coverage to "any person or organization with whom you [the named insured, Hatzel] have agreed in a written contract to provide insurance as is afforded under this policy". Clearly, Hatzel agreed in a written contract (its contract with Helmsley-Spear Inc.) to provide insurance as was afforded under the Zurich policy for Trump Empire State, Inc. [*5]and Helmsley-Spear Inc. As Trump Empire State Partners was not named in the contract between Hatzel and Helmsley-Spear Inc. as an entity for which Hatzel agreed to procure insurance, the Zurich policy does not extend coverage to Trump Empire State Partners (See, ALIB, Inc v. Atlantic Cas. Ins. Co., 52 AD3d 419 [1st Dept. 2008]).

Plaintiffs contend that Helmsley-Spear Inc. signed its contract with Hatzel as an agent for Trump Empire State Partners. However the contract fails to impose an obligation upon Hatzel to name Trump Empire State Partners as an additional insured. In fact, Trump Empire State Partners is not referenced anywhere in the contract. Plaintiffs' failure to offer any support or point to any basis in law or fact for their conclusory contention that "Trump Empire State Partners, as principal of Helmsley-Spear Inc., is entitled to additional insured coverage requires that this court deny plaintiffs summary judgment motion with regard to Trump Empire State Partners.

The burden now shifts to defendants to demonstrate by way of admissible evidence the existence of a factual issue requiring trial of the action. Defendant Zurich contends that the language in the additional insured endorsement in the Zurich policy limits the additional insured coverage to the person or organization with whom the named insured has entered into a contract, which in the case was Helmsley-Spear Inc. In support of this contention, defendant Zurich cites Linarello v. City University of New York, 6 AD3d 192 (1st Dept. 2004). However, the language in the additional insured endorsement at issue in this case differs crucially from the language of the endorsement in the Zurich policy. The Linarello additional insured endorsement provided coverage for "any person or organization for whom you [the insured] are performing operations when you and such... organization have agreed in writing in a contract... that such [emphasis added]person or organization be added as an additional insured on your policy." The additional insured provision of the Zurich policy is less restrictive. It extends coverage to any person or organization with whom the insured Hatzel agreed in a written contract to provide insurance for. Thus, Zurich's additional insured endorsement is not so restrictive as to limit coverage to only the person or organization with whom Hatzel, the named insured, contracted.

Defendant Zurich also contends that any claim plaintiffs might have for coverage under the Zurich policy would be barred by plaintiffs' failure to comply with the policy's condition precedent to coverage that timely notice of the claim and suit must be provided. There can be no dispute that by its letter of July 29, 2002, disclaiming coverage, Zurich repudiated liability on the underlying claim. Under these circumstances, defendant Zurich is not entitled to insist upon strict adherence to the terms of its policy relative to notice of the claim after it clearly repudiated liability on the claim by sending a letter disclaiming coverage (See, Auerbach v. Otsego Mut. Fire Ins. Co., 36 AD3d 840, 829 NYS2d 195 [2nd Dept. 2007]).

American Home Assurance Company, Trump Empire State, Inc., Trump Empire State Partners, and Helmsley-Spear, Inc., motion for an order granting summary judgment [*6]in their favor is granted to the extent of declaring that defendant Zurich Insurance Company is obligated to provide coverage for the defense and indemnification of Helmsley-Spear Inc. and Trump Empire State, Inc. in the Cayetano action and to reimburse them for attorneys' fees and related expenses incurred thus far.

Defendants Zurich and Hatzel's cross motion for an order granting summary judgment in their favor and declaring that Zurich has no duty to defend or indemnify plaintiffs in the underlying action is denied.

The foregoing constitutes the decision and order of this court.

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