The appellate court reversed the lower court's denial of the insurer's motion to dismiss a claim pursued by non-insured parties. Nino & Nino Corp. v. Utica First Insurance Co., 2025 N.Y. App. Div. LEXIS 3226 (N.Y. App. Div. May 28, 2025).
Granville Wiltshire (decedent) was an employee of Door Restaurant Corporation who died after sustaining injuries in an accident while working at the restaurant. Door Restaurant rented the premises from Daniel Nino. The administrator of the decedent's estate sued Nino and Nino Corporation to recover damages for personal injuries and wrongful death.
Five months after the accident, Nino transferred ownership of the premises to Nino Corporation. Nino died thereafter.
Door Restaurant had a business owners' policy with Utica First Insurance Company. The policy had an endorsement designating "Daniel Nino, c/o Community Realty Corp." and "Firtsultus Ins. c/o Daniel Nino" as additional insureds.
Nino Corporation and its insurer, Seneca Insurance Company, sued Utica, seeking a judgment declaring that the corporation was an additional insured under the Utica policy and that Utica had a duty to defend and indemnify the corporation in the underlying action. Utica moved to dismiss the complaint and for a judgment declaring that it had no obligation to defend or indemnify the corporation in the underlying action. The plaintiffs cross-moved for summary judgment seeking a declaration that Utica had a duty to defend and indemnify the corporation in the underling action. The lower court denied the motion to dismiss and the cross-motion.
The appellate court noted that a party was not entitled to coverage if it was not named as an insured or additional insured on the face of the policy. Through its submission of the Utica policy, Utica conclusively established that the corporation was not a named insured or an additional insured under the policy. Therefore, Utica had no duty to defend or indemnify the corporation in the underlying action.
