Liberty Mutual Insurance Co. v. Fordham Preparatory School

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered June 5, 1996, which, in a declaratory judgment action involving plaintiff insurer’s and plaintiff contractor’s obligation to defend or indemnify defendant-appellant owner in an action against the owner brought by the contractor’s employee for injuries sustained in a fall on the owner’s property, denied the owner’s motion for summary judgment, unanimously affirmed, without costs.

*491We agree with the IAS Court’s explicit finding that an issue of fact exists as to whether the injured employee was engaged in a work-related activity at the time he slipped and fell or just walking on an allegedly hazardous parking lot surface at or near the construction site, and with its implicit finding of law that such issue is material. Liberty has conceded its obligation to defend throughout the litigation. Concur—Rosenberger, J. P., Ellerin, Williams, Tom and Colabella, JJ.