2962. MT. HAWLEY INSURANCE COMPANY, AS SUBROGEE OF AS MARLITE CONSTRUCTION CORP., plf-ap, v. PENN-STAR INSURANCE COMPANY, def-res — Kenny Shelton Liptak Nowak LLP, Buffalo (Timothy E. Delahunt of counsel), for ap — Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola (Steven Verveniotis of counsel), for res — Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered May 27, 2015, which granted defendant’s motion to dismiss the complaint on the ground that plaintiff was collaterally estopped from bringing this action and denied plaintiff’s cross motion to dismiss defendant’s affirmative defenses and for summary judgment on its claims, unanimously affirmed, with costs.
Plaintiff brought this action in its capacity as subrogee of its insured, the Marlite Construction Corp. Marlite was the general contractor on a construction project. Marlite hired nonparty W.R. Precision, Inc. to be the steel work subcontractor on the project, and W.R. Precision, in turn, subcontracted its work to nonparty Structure Builders, Inc., d/b/a J&B Ironworks. An employee of Structure was injured in the course of the work and commenced a prior action against Marlite, among others. Plaintiff, as Marlite’s insurer, tendered Marlite’s defense of the prior action to defendant, W.R Precision’s insurer, based on the claim that Marlite was an additional insured under W.R. Precision’s policy. Defendant disclaimed coverage on the basis of, inter alia, an exclusion in the insurance policy for the work of independent contractors. Before the settlement of the prior action, the Appellate Term determined that defendant (W.R. Precision’s insurer), was not obligated to indemnify or defend either W.R. Precision or Marlite because of that exclusion in its policy (Szymanksi v. 444 Realty Co., LLC., 33 Misc 3d 126[A], 2011 NY Slip Op 51752[U] [App Term, 1st Dept 2011]).
