Collins v. Fashion Mall Partners, L.P.

299 A.D.2d 219, 749 N.Y.S.2d 143

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2002
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Louis Benza, J.), entered June 13, 2001, which, in an action by a laborer against the owner of a mall for personal injuries allegedly sustained while doing work at a store that rents space in the mall, insofar as appealed from, granted motions by the mall and the store for summary judgment declaring that plaintiffs employer is contractually obligated to defend and indemnify them, unanimously modified, on the law, to direct that such defense and indemnification be provided by plaintiffs employer’s insurer, appellant herein, and otherwise affirmed, without costs.

Plaintiffs unequivocal testimony establishes that he was performing work on a job connected to the space leased by respondent store. The only countervailing testimony was that of plaintiff’s employer, who claimed that plaintiff must have been working at another store in the mall because, after searching its records for the month in which the accident occurred, it could only find a contract for the other store. Absent further details as to the thoroughness of the employer’s records and search, this does not suffice to raise an issue of fact as to whether plaintiff was performing work at respondent store when injured. Since that work was pursuant to a contract covered by a general liability policy issued by appellant insurer and naming the store and the mall as additional insureds, the insurer, not its insured, should have been directed to defend and indemnify the additional insureds, and we modify accordingly. No issues of fact exist as to the mall’s negligence such as might defeat its claim for contractual indemnification. Concur — Andrias, J.P., Saxe, Buckley, Rosenberger and Mar-low, JJ.