UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ee ee ee ee ee a yee xX COLONY INSURANCE COMPANY, : ORDER AND OPINION Plaintiff, : DENYING MOTION FOR SUMMARY JUDGMENT AND -against- : CROSS-MOTION FOR : SUMMARY JUDGMENT RIVERSIDE CENTER SITE 5 OWNER LLC, : : 22 Civ. 6041 (AKH) Defendant. :

eee ee ee ee ee ee ee ee oe ee x ALVIN K. HELLERSTEIN, U.S.D.J.: The parties’ motion, and cross-motion, for summary judgment require me to interpret the policy of insurance between Colony Insurance Co., the insurer, and Riverside Center Site 5 Owner LLC, the insured, A workman at the construction site, Jose Sanchez, suffered injuries and sued Riverside in New York Supreme Court for its alleged negligence. Upon demand, Colony provided a defense, subject to a reservation-of-rights letter. Subsequently, following information supplied by Riverside to the effect that Sanchez was employed by a subcontractor, J. Carroll & Associates, Colony, on February 19, 2020, disclaimed

coverage under a policy exclusion, quoted below. This lawsuit for declaratory judgments followed; Colony asking for a judgment of non-coverage; Riverside counterclaiming for

coverage. The exclusionary clause provides that insurance coverage does not apply to injuries arising out of: All work, activities or operations performed by independent contractors or subcontractors which are directly paid, hired or contracted by the named insured except for the following direct contracted company: Tishman, Press Builders, Inc., Real Cleaning Ltd., City Skyline, Inc. and Lambert Services LLC.

Insurance Policy, Attach. 1 to the Vogel Decl., ECF No. 30. The insurer has the burden to prove that the policy exclusion applies. See NY-32

Realty Grp., Inc. v. Westcor Land Tit. Ins. Co., 691 E.Supp.3d 587, 593 (N.D.N.Y. 2023) (citing

Sammy v. First Am. Tit. Ins. Co.,

, 524 (2d Dept. 2022)). Thus, Colony must

prove (a) that Sanchez worked, or performed activities or operations for “an independent

contractor or subcontractor” of Riverside, (b) that the independent contractor or subcontractor

was “paid, hired or contracted” by Riverside, and (c) that the independent contractor or

subcontractor was not one of the four approved contractors or subcontractors. The parties dispute for whom Sanchez worked or performed activities or

operations. Colony, based on information provided by Riverside, alleges that Sanchez worked,

or performed activities or operations, for J. Carroll Assoc., that Carroll was engaged by Riverside

to perform “punch list work/services”, and that it was not one of the four permitted independent

contractors or subcontractors. However, the Workers’ Compensation Board found, in its

decision of September 3, 2019, that Sanchez was injured when he fell down stairs at the work site, and that he worked for ACJ Building Solutions, Inc. Riverside argues that since Colony has

not presented proof that ACJ Building Solutions was “directly paid, hired or contracted by”

Riverside, the policy exclusion does not apply. Furthermore, Colony argues, since Riverside

disclaimed coverage for a different reason, that Sanchez worked for AJ Carroll, Riverside’s

disclaimer is ineffective. Neither side deserves summary judgment. Sanchez’ allegation in the New York

Supreme Court is that he was “lawfully” on site and, therefore, ACJ Building Solutions was

lawfully on site. But who hired it, and who paid it for Sanchez’ work? The record suggests that

J. Carroll supplied workers to other contractors at the work site and, if so, it could have been a

joint employer with ACJ. And the record suggests that Colony’s disclaimer letter, asserting that

J. Carroll was the employer, not ACJ, was based on information provided by Riverside. Riverside cannot benefit from the inadequacy of a disclaimer Jetter that it, itself caused,

The parties have failed to discharge their discovery obligations. Discovery, including depositions, must be taken to show the contractors and their relationships at the work

site. Each should present a discovery plan for the conference to be held September 25, 2024, to

be concluded by October 25, 2024, with a motions schedule to be fixed in a subsequent conference, to be held November 1, 2024, 10:00 a.m, Finally, counsel for Colony are cautioned

to follow the Federal and Local Rules for summary judgments, without incorporations by reference of previous papers. The Clerk shall terminate ECF 73 and 79.

Dated: September 23, 2024 New York, New York CALVIN K. HELLERSTEIN we United States District Judge