SUPREME COURT - STATE OF NEW YORK. Justice. Plaintiff Index #: /02. Defendants.

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. JOSEPH COVELLO Justice HARTFORD CASUALTY INSURANCE COMPANY, TRIAL/IS, PART 24 NASSAU COUNTY Plaintiff Index #: /02 -against- VENGROFF WilLIAMS & ASSOCIATES INC. and MR. HARVEY VENGROFF Motion Seq. #: 03 & 04 Motion Date: OS/21/04 xxx Defendants. The following paper read on this motion: Notice of Motion with Exhibits... Notice of Cross Motion with Exhibits... Affdavits in Support. With Exhbits Reply Affirmation... Memorandum of Law Upon the foregoing papers, the motion by plaintiff, Harford Casualty Insurance Company ("Hartford"), for an order pursuant to CPLR granting Hartford sumar judgment on its first cause of action declaring that Hartford has no obligation to defend or indemnify the defendants in connection with certain underlying actions and for alternative relief is granted to the extent provided herein. Cross-motion by defendants for an order pursuant to CPLR granting them summary judgment dismissing Hartford' s complaint and for additional and alternative relief is denied in all respects. In this declaratory judgment action, Hartford seeks judgment " d)eclaring that the insurance contract entered into by Hartford and VengroffWiliams (i., Vengroff Wiliams & Associates, Inc. does not obligate Harford to defend or indemnify

2 Harford v Vengroff Vengroff Wiliams and / or Harvey Vengroff for any amount in connection with the underlying actions. Hartford additionally seeks judgment: "Reforming the insurance contract to include, as part of the 'Named Insured' endorsement, a provision limiting the scope of coverage to the designated collection-related operations of Vengroff Willams and / or the designated insured location of777 Larkfeld Road, Commack, New York 11725, nunc pro tunc as of the date of inception of the Hartford policy. The four underlying actions arise out of a fire, which occured on, or about May , at 28 West Hils Road, Huntington Station, New York. The four underlying actions are: (1) Vasquez, et ai Harvey Vengroff et ai Supreme Cour, Suffolk County, Index # 13523/00; (2) Kiernan, as Public Administrator of the Estate of Maria Aurora Chicas, et ai Harvey Vengroff et ai Supreme Cour, Suffolk County, Index #18802/00; (3) Kiernan, as Public Administrator of the Estate of Maria Aurora Chicas, et ai VengrofJWiliams Associates, Inc. Supreme Cour, Suffolk County, Index #9656/01; and (4) Kiernan, as Public Administrator of the Estate of Maria Aurora Chicas, et ai Vengroff Wiliams Associates of New York, et ai Supreme Cour, Suffolk County, Index #9564/02. It is undisputed that 28 West Hils Road was owned by defendant Harvey Vengroff, on the date of the fire. Hartford' s complaint alleges, inter alia, that: "On or about August 4, 1998 Hartford and Vengroff Wiliams entered into one or more insurance contracts, including, but not limited to, policy number 12 UUC CU2220, which provided, among other things

3 Harford v Vengroff comprehensive general liabilty coverage to the insured for the period August 4, 1998 to August 4, 1999." Hartford's complaint further alleges that: "Policy contract 12 UUC CU2220 is a package policy contract, which also provides first part propert coverage the insured for the designated insured location and boiler and machinery coverage. It is additionally alleged that: "The Harford policy contains limits of liabilty of $ per occurence, $ in the aggregate, and $ for fire damage applicable to anyone fire. Harford' s complaint goes on to allege that: "Pursuant to the parties ' negotiations Hartford issued the policy to VengroffWiliams as the ' Named Insured. ' (and that) The policy identified the 'Named Insured' as a ' corporation ' the business of which is specifically described as a ' collection agency. It is also alleged that: "As par of the negotiations for the Harford policy, the insured location was identified as ' 777 Larkfield Road, Commack, New York ' which was fuher described as a ' collection agency. ", It is fuhermore alleged that: "Vengroff Wiliams never sought and Harford never intended to provide coverage to V engroff Wiliams for liabilities unelated to collection-related operations or operations occurng at other than the designated insured location of 777 Larkfeld Road, Commack, New York It is well established that: "Where the terms of an insurance policy are clear and unambiguous, interpretation of those terms is a matter of law for the cour." (Town of Harrison v National Union Fire Ins. Co., 89 NY2d ; Hartford Accident &

4 Harford v Vengroff. Indem. Co. v Wesolowski 33 NY2d 169, 172). The Cour has reviewed the insurance policy in question (Exhibits A and B to affidavit of Ms. Diane Cosgrove) and finds that it clearly states that it provides "Commercial Propert" and "Commercial General Liabilty" coverage to Vengroff Wiliams and other named insureds, including defendant Harvey Vengroff, only for Vengroff Wiliams ' commercial premises located at 777 Larkfeld Road, Commack, New York. The page entitled "Common Policy Declarations" identifies policy number 12 VUC CU2220 as a "Commercial Propert" and "Commercial General Liabilty" insurance policy. (Exhibit A to Ms. Cosgrove s affidavit HA ). The numbers refer to Hartford' s stamped page numbers. The page entitled "Commercial Propert - Schedule of Premises and Coverages Provided" describes the insured premises as " 1 Building" located at 777 Larkfield Road, Commack, New York. (Exhibit A to Ms. Cosgrove s affidavit, p. HAR ). The page entitled "Commercial General Liabilty Schedule" describes the hazards insured against as "Premises Operations Coverage" and the location as 777 Larkfield Road, Commack, New York. (Exhibit A to Ms. Cosgrove affidavit HA ). A second page containing "Common Policy Declarations " (labeled " Policy Face Sheet" on the top) describes the tye of business as "Collec(tiJon Agency." (Exhibit B to Ms. Cosgrove s affidavit, p. HAR ). A second page entitled "Commercial Propert - Schedule of Premises and Coverages Provided" describes the insured premises

5 Hartford v Vengroff as " 1 Building" located at 777 Larkfield Road, Commack, New York. (Exhibit B to Ms. Cosgrove s affidavit, p. HAR ). A third page entitled "Commercial Propert- Schedule of Premises and Coverages Provided" describes the insured premises as " Building" located at 777 Larkfield Road, Commack, New York. (Exhibit B to Ms. Cosgrove s affidavit, p. HAR ). A third page containing "Common Policy Declarations" (also labeled "Policy Face Sheet" on the top) describes the tye of business as "Collec(tiJon Agency." (Exhibit B to Ms. Cosgrove s affidavit, p. HAR ). A page entitled "Premise Building Recap" describes the premises insured as 001 BLDG" located at 777 Larkfield Road, Commack, New York." (Exhibit B to Ms. Cosgrove s affidavit, p. HAR ). Two pages entitled "Special Multi-Flex Recap describes the premises insured as "Premises 001 Building 001." (Exhibit B to Ms. Cosgrove s affidavit, pp. HAR , HAR ). A page entitled "Propert Detail" likewise describes the premises insured as "Premises 001 Building 001. " (Exhibit B to Ms. Cosgrove s affidavit, p. HAR ). Lastly, a page entitled "General Liabilty Detail" describes the insured premises as "PRMS: 001 BLDG: 001. " (Exhibit to Ms. Cosgrove s affidavit, p. HAR ). Counsel for the defendants argues that: "While the policy references the business address of Vengroff Wiliams, and states the general nature of the business affairs of VengroffWiliams, Hartford' s Comprehensive General Liabilty Insurance policy does not restrct Hartford' s coverage of either VengroffWiliams' activities, and or the

6 Hartford v Vengroff individual business activities of Harvey Vengroff, individually, and lor the other named insureds... to either on or off site locations; nor does it restrct the terms of coverage to any particular business activity that Vengroff Wiliams and or Harvey Vengroff individually, and lor the other named insureds, were to engage in. This arguent is not persuasive. The Cour of Appeals has stated that "when the meaning of an insurance contract is plain and clear, not only are all parties including the insurer who supplied it, entitled to have it enforced according to its terms (Government Employees Ins. Co. Kliger, 42 NY2d 863), but this entitlement is not to be subverted by straining to find ambiguity which otherwise might not be thought to exist (1 Couch' s Cyclopedia of Insurance Law (2d edj, ; 13 Appleman, Insurance Law & Practice, ). So, if the only reasonable constrction is one favorable to the insurer-drafter of the agreement there should be no reluctance to follow it (Hollander Nationwide Mut. Ins. Co., 60 AD2d , mot for Iv to app den 44 NY2d 646). (Loblaw, Inc. v Employers Liabilty Assurance Corp. 57 NY2d 872, 877). The Cour holds that the construction placed on the subject insurance policy by the defendants (i., that it provides Commercial Propert and Commercial General Liability insurance to any and all commercial properties owned by defendant Harvey Vengroff and the other named insureds wherever located - even though those properties are not identified or listed in the insurance policy issued by Hartford) is uneasonable as a matter

7 Harford v Vengroff of law. The Court holds that the only reasonable constrction is that Commercial Propert insurance is provided only to the premises described as " 1 Building" located at 777 Larkfield Road, Commack, New York, which is the only premises listed in the Commercial Propert - Schedule of Premises and Coverages Provided." Likewise, the Cour holds that the only reasonable constrction is that Commercial General Liabilty insurance is provided only for commercial operations conducted at 777 Larkfeld Road Commack, New York, which is the only location listed in the "Commercial General Liability Schedule. Turing to the defendants ' cross-motion, in branch (1 ), the defendants seek an order pursuant to CPLR 3212(a), inter alia, dismissing Hartford' s complaint "on the grounds that said Plaintiff has conceded in wrting and in Oral Deposition its contractual obligations and liabilty to undertake the defense of both of the Defendants herein. this regard, counsel for the defendants contends that Ms. Cosgrove conceded at her deposition that both defendants "are entitled to defense and indemnity coverage." The Cour disagrees. Harford' s obligations under the subject insurance policy wil be determined from the policy itself. Neither Ms. Cosgrove s testimony nor Harford' voluntary undertaking of the defense of the defendants in several of the underlying actions can rewrite the policy to provide insurance coverage. of the defendants ' cross-motion is, therefore, denied. In JJranc!1 (2) of the cross-motion, the defendants seek an order pursuant to CPLR

8 Hartford v yengroff 3212(e), inter alia, awarding them money damages for the expenses, costs and attorneys fees they have incurred in making this cross-motion. In jjranc!1 (3) of the cross-motion the defendants, in the alternative, seek an order pursuant to CPLR 3212(e), inter alia setting the issue of money damages down for determination. Since the Court is granting a declaratory judgment in favor of Harford, the defendants are not entitled to recover expenses, costs or attorneys' fees. Thus jjranc!1es (2) anq (3) of the crossmotion are denied. Accordingly, Hartford is granted sumar judgment on its first cause of action declarng that it has no obligation under policy number 12 VUC CU2220 to defend or indemnify the defendants in the four underlying actions. The alternative relief requested by Harford (i., reformation of the subject insurance policy) is denied as moot. This constitutes the decision and Order of the Court. Settle judgment on notice Dated: June 10, 2004 H COVELLO, J. S. C. xxx!ltep. JUN ( 11...", COUNTY Ctt ilhct