DD 11th Avenue, LLC v. Harleysville Insurance , 10 N.Y.S.3d 865 ( 2015 )

Order, Supreme Court, New York County (Richard F. Braun, J.), entered June 17, 2014, which, to the extent appealed from, granted plaintiffs’ motion for summary judgment to the extent of declaring that the policy issued by defendant insurance company provides primary and not excess coverage to plaintiffs, unanimously affirmed, with costs. Appeal from order (same court and Justice), entered November 1, 2013, unanimously dismissed, without costs, as subsumed in the appeal from the order entered June 17, 2014.

Defendant insurance company issued a policy for liability coverage to defendant, S.J. Electric, Inc. Plaintiffs, the owner of the premises as well as the construction and development managers, who were listed as additional insureds on the policy, sought coverage for an underlying personal injury claim brought by an employee of S.J. Electric. Defendant insurance company declined to provide coverage, arguing, among other things, that its coverage obligations are excess to plaintiffs’ own coverage through a Contractor Controlled Insurance Program (CCIP).

The motion court correctly determined that the plain language of the policy provides primary coverage to plaintiffs in the underlying action. The terms of the CCIP endorsement cannot pertain to plaintiffs as additional insureds; by its plain language, it only pertains to the named insured, S.J. Electric. In addition, the additional insured endorsement specifically provides that “any coverage . . . to an additional insured shall be excess . . . unless the ‘written contract’ specifically requires that this insurance be primary” and S.J. Electric expressly contracted to provide plaintiffs primary coverage (see Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d 140, 145-146 [1st Dept 2008]).

We have considered the parties’ remaining arguments and find them unavailing.

Concur — Mazzarelli, J.P., Sweeny, Acosta, Clark and Kapnick, JJ.