Preview
FILED: QUEENS COUNTY CLERK 08/24/2018 02:27 PM INDEX NO. 708669/2017
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/24/2018
Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY
Present: HONORABLE ALLAN B. WEISS IA Part 2
Justice
NEW YORK FAST GENERAL CONTRACTING Index No.: 708669/17
CORP.,
Plaintiff, Motion Date: 3/8/18
CENTURY SURETY COMPANY, NATIONAL Motion Seq. Nos. 1, 2 & 3
UNION FIRE INSURANCE COMPANY OF
PITTSBURGH, PA, WESTERN HERITAGE
INSURANCE COMPANY, NEW YORK STATE
FILED
INSURANCE FUND, GOLDEN CITY IRON
WORK, INC., PARK PLACE ESTATE, LLC.
AND XIAOEN XIE,
AUG 24,2018
COUNTY CLERK
Defendants. QUEENS COUNTY
The following numbered papers read on this motion by defendant Western Heritage
Insurance Company (Western), for summary judgment pursuant to CPLR 3212, dismissing
the complaint; by separate amended notice of motion by Western also for summary judgment
pursuant to CPLR 3212, dismissing the complaint; and by •separate notice of motion by
defendant Century Surety Company (Century), for and order dismissing the complaint
pursuant to CPLR 3211 (a)(1), for summary judgment pursuant to CPLR 3212, dismissing
the claims against it, and for an order declaring that Century has no duty to defend and no
duty to indemnify plaintiff New York Fast General Contracting Corp. (plaintiff), in an
underlying action entitled Xiaoen Xie and Long Ying Chen v New York Fast General
Contracting Corp., and Park Place Estate, LLC, (Index No. 703150/13).
Papers
Numbered
Notices of Motion - Affidavits - Exhibits EF 22-33, 36-49
Answering Affidavits - Exhibits EF 50-57, 60-61, 64-81
Reply Affidavits EF 58-59, 62-63, 79-84
Upon the foregoing papers it is ordered that the motions are determined as follows:
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This is an action sounding in declaratory judgment for defense, indemnification and
for insurance coverage. Plaintiff commenced the instant action as a result of an underlying
personal injury action commenced in New York State Supreme Court, Queens County,
entitled Xiaoen Xie and Long Ying Chen v New York Fast General Contracting Corp., and
Park Place Estate, LLC, (Index No. 703150/13) (hereinafter referred to as the underlying
action). The underlying action was commenced against plaintiff for alleged violations of
Labor Law due to a fall at a construction site that occurred on or about July 3, 2013.
As is relevant upon the instant motions, defendant Park Place Estate, LLC (Park
Place), was the owner of premises located at 32-28 137 Street, in the County of Queens.
Park Place allegedly hired plaintiff to act as the general contractor for construction work
taking place at the premises. On or about June 24, 2013, plaintiff allegedly hired defendant
Golden City Iron Work, Inc. (Golden City), to perform certain construction work at the
premises. Defendant Xiaoen Xie (Xie), was allegedly an employee of Golden City at the
time of the accident which resulted from this construction work and which accident led to
the claims alleged asserted by Xie in the underlying action.
On or about September 13, 2012, Century issued a "Commercial Lines Policy"
insurance policy, Policy CCP 775592, to plaintiff for the policy period of August 31, 2012,
to August 31, 2013. In a letter dated September 23, 2013, Century disclaimed insurance
coverage to plaintiff in the underlying action under its policy exclusions. On or about
September 13, 2012, Western issued a "Commercial Policy" insurance policy, Policy
SCP0901068, to Golden City for the policy period from September 13, 2012, to September
13, 2013, for the construction work being performed at 32-28 137 Street. In a letter dated
July 26, 2013, Western disclaimed coverage to Golden City in the underlying action under
its policy exclusions.
In the instant declaratory judgment action, plaintiff's first cause of action has been
alleged against Century in relation to the insurance policy issued by Century to plaintiff
seeking defense, indemnification and insurance coverage for the costs incurred by plaintiff
in defense of and related to the underlying action. Plaintiffs second cause of action has been
alleged against Western, in relation to the insurance policy issued by Western to Golden City,
in which plaintiff was named an additional insured, seeking defense, indemnification and
insurance coverage for the costs incurred by plaintiff in defense of and related to the
underlying action. Plaintiffs third cause of action has been alleged against defendant New •
York State Insurance Fund in relation to an insurance policy issued by New York State
Insurance Fund, Policy 21479860, seeking defense, indemnification and insurance coverage
for the costs incurred by plaintiff in defense of and related to the underlying action.
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Western has now moved for summary judgment pursuant to CPLR 3212, dismissing
the complaint and has done so via one Notice of Motion and one amended Notice of Motion.
The amended Notice of Motion, which was assigned motion Sequence No. 2, is identical to
Western's first Notice of Motion, which was assigned motion Sequence No. 1, and the court
will consider Sequence No.'s 1 and 2 together. "... [A] fundamental aspect of a motion for
summary judgment [is that] [] the movant [] must first come forward with admissible
evidence demonstrating, prima facie, the absence of material issues of fact and that, on those
facts, it is or would be entitled to judgment as a matter of law" (Englington Med., P.C. v
Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 230 [2d Dept 2011]; see Smalls v AJI Indus.,
Inc., 10 NY3d 733, 735 [2008]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1984];
Midfirst Bank v Agho, 121 AD3d 343, 347 [2d Dept 2014] [evidence submitted in support
of summary judgment must be in a form admissible at trial]).
In support of its motion, Western has argued that insurance coverage in the instant
matter is barred by the "Exclusion — Injury to Contractors" exclusion of the policy it issued
to Golden City because Xie was an employee of Golden City and that Xie's accident and
injuries arouse out of Golden City's work at the premises. "An insurance policy is a contract
between the insurer and the insured. Thus, the extent of coverage ... is controlled by the
relevant policy terms ..." (Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d 140,
145 [1st Dept 2008]; see Gilbane Bldg. Co./TDXCons(. Corp. v. St Paul Fire & Marine Ins.
Co., 143 AD3d 146, 150 [1st Dept 2016]).
"As the Court of Appeals has stated, New York law `recognize[s] the right of each
insurer to rely upon the terms of its own contract with its insured" (Bovis Lend Lease LMB,
Inc. v Great Am. Ins. Co., 53 AD3d at 145, quoting State Farm Fire & Cas. Co. v LiMauro,
65 NY2d 369, 373 [1985]). "An insurance agreement is subject to principles of contract
interpretation," (Universal Am. Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa.,
25 NY3d 675, 680 [2015]), and "[g]enerally, courts determine the rights and obligations of
parties under insurance contracts based on the specific language of the policies" (Demetrio
v. Stewart Title Ins. Co., 124 AD3d 824, 825 [2d Dept 2015], lv denied, 25 NY3d 906
[2015]).
The record contains, among other things, a copy of the verified complaint in this
action and a copy of Western's verified answer to the complaint, a copy of Western's
insurance policy issued to Golden City, a copy of plaintiff's contract with Golden City, and
a copy of Western's letter, dated July 26,2013, denying coverage to Golden City based upon
the fact that Xie was an "employee" of Golden City at the time of the accident. An
endorsement included at the end of the Western insurance policy issued to Golden City
provides that plaintiff is a named additional insured under the policy. The policy itself
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provides in Section 1 - Coverages, in part 2 entitled "Exclusions," that the following
exclusions apply:
"e. Employer's Liability. 'Bodily injury' to: (1) An 'employee' of the insured
arising out of and in the course of: (a) Employment by the insured... (2) The
spouse... of that 'employee' as a consequence of Paragraph (1) above. This
exclusion applies whether the insured may be liable as an employer or in any
other capacity and to any obligation to share damages with or repay someone
else who must pay damages because of the injury."
The "Exclusion — Injury to Contractors" exclusion, included at the end of the policy
provides, in relevant part, as follows:
"The following exclusion is added to the policy: This insurance does not apply
to: I. 'Bodily injury', 'property damage' or 'injury' to: a. Any 'employee,'
'leased worker,' temporary worker' or 'volunteer worker' of any insured; ...
2. Any obligation of any insured to defend, indemnify or contribute with
another because of 'bodily injury,' property damage' or 'injury' to any party
noted in paragraph 1. above; or ...3. 'Bodily injury,' property damage' or
'injury' to the spouse ... of any party noted in paragraphs 1 or 2 above as a
consequence of items I. or 2. above. This exclusion applies to all claims and
'suits' by any person or organization for damages because of 'bodily injury,'
'property damage' or 'injury' including damages for care and loss of services."
Section 5 - Definitions of the Western policy provides the following definitions:
"5. 'Employee' includes a 'leased worker'. 'Employee' does not include a
'temporary worker'... 10. 'Leased worker' means a person leased to you by a
labor leasing firm under an agreement between you and the labor leasing firm,
to perform duties related to the conduct of your business. 'Leased worker'
does not include a 'temporary worker'... 19. 'Temporary worker' means a
person who is furnished to you to substitute for a permanent 'employee' on
leave or to meet seasonal or short-term workload conditions. 20. 'Volunteer
worker' means a person who is not your 'employee', and who donates his or
her work and acts at the direction of and within the scope of duties determined
by you, and is not paid a fee, salary or other compensation by you or anyone
else for their work performed by you."
Based upon this court's review of the evidence in the record, Western has failed to
satisfy its prima facie burden. Western has failed to adequately demonstrate upon the motion
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papers before the court, through admissible evidence, whether Xie was or was not, in fact,
an employee of Golden City at the time of the accident under the definitions set forth in its
policy, what role Xie played at the worksite and/or why Xie was present at the worksite on
the date of the accident. Therefore, Western has failed to adequately demonstrate whether
the terms and exclusions of Western's policy issued to Golden City are, in fact, applicable
in the instant matter to deny insurance coverage for the claims asserted in the underlying
action. In light of the above, Western is not entitled to the relief sought on its motion (see
•Alvarez v Prospect Hosp., 68 NY2d at 324).
Century has also moved for and order dismissing the complaint pursuant to CPLR
3211 (a)(1) and 3212. CPLR 3211(a)(1) provides that "[a] party may move for judgment
dismissing one or more causes of action asserted against him on the ground that ... a defense
is founded upon documentary evidence..." However, in light of the fact that Century has also
moved for summary judgment pursuant to CPLR 3212, dismissing the claims against it and
for an order declaring that it has no duty to defend plaintiff and no duty to indemnify plaintiff
in the underlying action, the court will treat Century's motion as one for summary judgment
pursuant to CPLR 3212.
Century has argued that insurance coverage in the instant matter is barred by the
"Exclusion- Bodily Injury to Independent Contractors" endorsement of the policy it issued
to plaintiff because Xie was an employee of Golden City, which was hired by plaintiff The
record contains, among other things, a copy of the verified complaint in this matter, a copy
of Century's verified answer, a copy of plaintiffs contract with Golden City, a copy of the
insurance policy Century issued to plaintiff, a copy of a coverage declination letter dated
September 23, 2013, and a copy of the complaint in the underlying action. The Century
policy provides in Section 1 - Coverages, that:
"1. Insuring Agreement. a. We will pay those sums that the insured becomes
legally obligated to pay as damages because of 'bodily injury' or 'property
damage' to which this insurance applies. We will have the right and duty to
defend the insured against any 'suit' seeking those damages. However, we
will have no duty to defend the insured against any 'suit' seeking damages for
'bodily injury' or 'property damage' to which this insurance does not apply."
The Century policy also contains an endorsement entitled "Exclusions - Bodily Injury
to Independent Contractors," which provides, in relevant part, the following:
"The following exclusion is added to Section I - Coverages, Coverage...
Exclusions: This insurance does not apply to: Independent Contractors...
'Bodily injury' to: (1) Any independent contractor or the 'employee' of any
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independent contractor while such independent contractor or their 'employee'
is working on behalf of any insured; or (2) The spouse ... of such independent
contractor or 'employee' of the independent contractor as a consequence of (1)
above. This exclusion applies: (1) Whether the insured may be liable as an
employer of in any other capacity; and (2) To any obligation to share damages
with or repay someone else who must pay damages because of the injury."
Section 5 of the policy, entitled "Definitions," provides the following:
"5. 'Employee' includes a 'leased worker,' a 'temporary worker' and a
'volunteer worker" ... 10. 'Leased worker' means a person leased to you by a
labor leasing firm under an agreement between you and the labor leasing firm,
to perform duties related to the conduct of your business. 'Leased worker'
does not include a 'temporary worker'... 18. 'Temporary worker' means a
person who is furnished to you to substitute for a permanent 'employee' on
leave or to meet seasonal or short term workload conditions... 20. 'Volunteer
worker' means a person who is not your 'employee' and who donates his or
her work and acts at the direction of and within the scope of duties determined
by you, and is not paid a fee, salary or other compensation by you or anyone
else for their work performed for you."
Upon a careful review of the evidence contained in the record, including the plain
terrris of Century's policy read in conjunction with the terms of the written agreement for
construction work between plaintiff and Golden City, genuine issues of material fact exist,
at the very least, as to whether Golden City was, in fact, an independent contractor or
plaintiffs subcontractor at the time of Xie's accident. Thus, Century has failed to adequately
demonstrate whether the endorsement entitled "Exclusions - Bodily Injury to Independent
Contractors," applies to exclude insurance coverage to plaintiff in this matter.
Furthermore, Century has failed to demonstrate whether Xie was or was not, in fact,
an employee of Golden City at the time of the accident, as defined by the terms of Century's
insurance policy. Despite its contention that coverage is disclaimed since Xie was an
employee of Golden City, the court notes that the complaint in the underlying action, as
pointed to by Century, is not a verified complaint and that its conclusory allegations may not
serve as admissible evidence to establish that fact (CPLR 105 [u]; see also Alexander,
Practice Commentaries, McKinney 's Cons Laws of NY, Book 7B, CPLR C105:7; cf Those
Certain Underwriters at Lloyds, London v Gray, 49 AD3d 1, 5 [1st Dept 2007]). Therefore,
Century has not adequately demonstrated whether the exclusions of the insurance policy do,
in fact, apply in this matter to bar insurance coverage. In light of the above determination,
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Century is not entitled to the relief sought on its motion (see Alvarez v Prospect Hosp.,
-68 NY2d at 324).
Accordingly, Western's motions for summary judgment pursuant to CPLR 3212,
dismissing the complaint is denied. Century's motion for and order dismissing the complaint
pursuant to CPLR 3211 (a)(1), and for summary judgment pursuant to CPLR 3212,
dismissing the claims against it, and for an order declaring that Century has no duty to defend
and no duty to indemnify plaintiff in the underlying action is denied in its entirety.
Dated: Augusi 018
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Preview
FILED: QUEENS COUNTY CLERK 08/24/2018 02:27 PM INDEX NO. 708669/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/24/2018 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE ALLAN B. WEISS IA Part 2 Justice NEW YORK FAST GENERAL CONTRACTING Index No.: 708669/17 CORP., Plaintiff, Motion Date: 3/8/18 CENTURY SURETY COMPANY, NATIONAL Motion Seq. Nos. 1, 2 & 3 UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, WESTERN HERITAGE INSURANCE COMPANY, NEW YORK STATE FILED INSURANCE FUND, GOLDEN CITY IRON WORK, INC., PARK PLACE ESTATE, LLC. AND XIAOEN XIE, AUG 24,2018 COUNTY CLERK Defendants. QUEENS COUNTY The following numbered papers read on this motion by defendant Western Heritage Insurance Company (Western), for summary judgment pursuant to CPLR 3212, dismissing the complaint; by separate amended notice of motion by Western also for summary judgment pursuant to CPLR 3212, dismissing the complaint; and by •separate notice of motion by defendant Century Surety Company (Century), for and order dismissing the complaint pursuant to CPLR 3211 (a)(1), for summary judgment pursuant to CPLR 3212, dismissing the claims against it, and for an order declaring that Century has no duty to defend and no duty to indemnify plaintiff New York Fast General Contracting Corp. (plaintiff), in an underlying action entitled Xiaoen Xie and Long Ying Chen v New York Fast General Contracting Corp., and Park Place Estate, LLC, (Index No. 703150/13). Papers Numbered Notices of Motion - Affidavits - Exhibits EF 22-33, 36-49 Answering Affidavits - Exhibits EF 50-57, 60-61, 64-81 Reply Affidavits EF 58-59, 62-63, 79-84 Upon the foregoing papers it is ordered that the motions are determined as follows: 1 of 7 FILED: QUEENS COUNTY CLERK 08/24/2018 02:27 PM INDEX NO. 708669/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/24/2018 This is an action sounding in declaratory judgment for defense, indemnification and for insurance coverage. Plaintiff commenced the instant action as a result of an underlying personal injury action commenced in New York State Supreme Court, Queens County, entitled Xiaoen Xie and Long Ying Chen v New York Fast General Contracting Corp., and Park Place Estate, LLC, (Index No. 703150/13) (hereinafter referred to as the underlying action). The underlying action was commenced against plaintiff for alleged violations of Labor Law due to a fall at a construction site that occurred on or about July 3, 2013. As is relevant upon the instant motions, defendant Park Place Estate, LLC (Park Place), was the owner of premises located at 32-28 137 Street, in the County of Queens. Park Place allegedly hired plaintiff to act as the general contractor for construction work taking place at the premises. On or about June 24, 2013, plaintiff allegedly hired defendant Golden City Iron Work, Inc. (Golden City), to perform certain construction work at the premises. Defendant Xiaoen Xie (Xie), was allegedly an employee of Golden City at the time of the accident which resulted from this construction work and which accident led to the claims alleged asserted by Xie in the underlying action. On or about September 13, 2012, Century issued a "Commercial Lines Policy" insurance policy, Policy CCP 775592, to plaintiff for the policy period of August 31, 2012, to August 31, 2013. In a letter dated September 23, 2013, Century disclaimed insurance coverage to plaintiff in the underlying action under its policy exclusions. On or about September 13, 2012, Western issued a "Commercial Policy" insurance policy, Policy SCP0901068, to Golden City for the policy period from September 13, 2012, to September 13, 2013, for the construction work being performed at 32-28 137 Street. In a letter dated July 26, 2013, Western disclaimed coverage to Golden City in the underlying action under its policy exclusions. In the instant declaratory judgment action, plaintiff's first cause of action has been alleged against Century in relation to the insurance policy issued by Century to plaintiff seeking defense, indemnification and insurance coverage for the costs incurred by plaintiff in defense of and related to the underlying action. Plaintiffs second cause of action has been alleged against Western, in relation to the insurance policy issued by Western to Golden City, in which plaintiff was named an additional insured, seeking defense, indemnification and insurance coverage for the costs incurred by plaintiff in defense of and related to the underlying action. Plaintiffs third cause of action has been alleged against defendant New • York State Insurance Fund in relation to an insurance policy issued by New York State Insurance Fund, Policy 21479860, seeking defense, indemnification and insurance coverage for the costs incurred by plaintiff in defense of and related to the underlying action. 2 2 of 7 FILED: QUEENS COUNTY CLERK 08/24/2018 02:27 PM INDEX NO. 708669/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/24/2018 Western has now moved for summary judgment pursuant to CPLR 3212, dismissing the complaint and has done so via one Notice of Motion and one amended Notice of Motion. The amended Notice of Motion, which was assigned motion Sequence No. 2, is identical to Western's first Notice of Motion, which was assigned motion Sequence No. 1, and the court will consider Sequence No.'s 1 and 2 together. "... [A] fundamental aspect of a motion for summary judgment [is that] [] the movant [] must first come forward with admissible evidence demonstrating, prima facie, the absence of material issues of fact and that, on those facts, it is or would be entitled to judgment as a matter of law" (Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 230 [2d Dept 2011]; see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1984]; Midfirst Bank v Agho, 121 AD3d 343, 347 [2d Dept 2014] [evidence submitted in support of summary judgment must be in a form admissible at trial]). In support of its motion, Western has argued that insurance coverage in the instant matter is barred by the "Exclusion — Injury to Contractors" exclusion of the policy it issued to Golden City because Xie was an employee of Golden City and that Xie's accident and injuries arouse out of Golden City's work at the premises. "An insurance policy is a contract between the insurer and the insured. Thus, the extent of coverage ... is controlled by the relevant policy terms ..." (Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d 140, 145 [1st Dept 2008]; see Gilbane Bldg. Co./TDXCons(. Corp. v. St Paul Fire & Marine Ins. Co., 143 AD3d 146, 150 [1st Dept 2016]). "As the Court of Appeals has stated, New York law `recognize[s] the right of each insurer to rely upon the terms of its own contract with its insured" (Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d at 145, quoting State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369, 373 [1985]). "An insurance agreement is subject to principles of contract interpretation," (Universal Am. Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 25 NY3d 675, 680 [2015]), and "[g]enerally, courts determine the rights and obligations of parties under insurance contracts based on the specific language of the policies" (Demetrio v. Stewart Title Ins. Co., 124 AD3d 824, 825 [2d Dept 2015], lv denied, 25 NY3d 906 [2015]). The record contains, among other things, a copy of the verified complaint in this action and a copy of Western's verified answer to the complaint, a copy of Western's insurance policy issued to Golden City, a copy of plaintiff's contract with Golden City, and a copy of Western's letter, dated July 26,2013, denying coverage to Golden City based upon the fact that Xie was an "employee" of Golden City at the time of the accident. An endorsement included at the end of the Western insurance policy issued to Golden City provides that plaintiff is a named additional insured under the policy. The policy itself 3 3 of 7 FILED: QUEENS COUNTY CLERK 08/24/2018 02:27 PM INDEX NO. 708669/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/24/2018 provides in Section 1 - Coverages, in part 2 entitled "Exclusions," that the following exclusions apply: "e. Employer's Liability. 'Bodily injury' to: (1) An 'employee' of the insured arising out of and in the course of: (a) Employment by the insured... (2) The spouse... of that 'employee' as a consequence of Paragraph (1) above. This exclusion applies whether the insured may be liable as an employer or in any other capacity and to any obligation to share damages with or repay someone else who must pay damages because of the injury." The "Exclusion — Injury to Contractors" exclusion, included at the end of the policy provides, in relevant part, as follows: "The following exclusion is added to the policy: This insurance does not apply to: I. 'Bodily injury', 'property damage' or 'injury' to: a. Any 'employee,' 'leased worker,' temporary worker' or 'volunteer worker' of any insured; ... 2. Any obligation of any insured to defend, indemnify or contribute with another because of 'bodily injury,' property damage' or 'injury' to any party noted in paragraph 1. above; or ...3. 'Bodily injury,' property damage' or 'injury' to the spouse ... of any party noted in paragraphs 1 or 2 above as a consequence of items I. or 2. above. This exclusion applies to all claims and 'suits' by any person or organization for damages because of 'bodily injury,' 'property damage' or 'injury' including damages for care and loss of services." Section 5 - Definitions of the Western policy provides the following definitions: "5. 'Employee' includes a 'leased worker'. 'Employee' does not include a 'temporary worker'... 10. 'Leased worker' means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. 'Leased worker' does not include a 'temporary worker'... 19. 'Temporary worker' means a person who is furnished to you to substitute for a permanent 'employee' on leave or to meet seasonal or short-term workload conditions. 20. 'Volunteer worker' means a person who is not your 'employee', and who donates his or her work and acts at the direction of and within the scope of duties determined by you, and is not paid a fee, salary or other compensation by you or anyone else for their work performed by you." Based upon this court's review of the evidence in the record, Western has failed to satisfy its prima facie burden. Western has failed to adequately demonstrate upon the motion 4 4 of 7 FILED: QUEENS COUNTY CLERK 08/24/2018 02:27 PM INDEX NO. 708669/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/24/2018 papers before the court, through admissible evidence, whether Xie was or was not, in fact, an employee of Golden City at the time of the accident under the definitions set forth in its policy, what role Xie played at the worksite and/or why Xie was present at the worksite on the date of the accident. Therefore, Western has failed to adequately demonstrate whether the terms and exclusions of Western's policy issued to Golden City are, in fact, applicable in the instant matter to deny insurance coverage for the claims asserted in the underlying action. In light of the above, Western is not entitled to the relief sought on its motion (see •Alvarez v Prospect Hosp., 68 NY2d at 324). Century has also moved for and order dismissing the complaint pursuant to CPLR 3211 (a)(1) and 3212. CPLR 3211(a)(1) provides that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that ... a defense is founded upon documentary evidence..." However, in light of the fact that Century has also moved for summary judgment pursuant to CPLR 3212, dismissing the claims against it and for an order declaring that it has no duty to defend plaintiff and no duty to indemnify plaintiff in the underlying action, the court will treat Century's motion as one for summary judgment pursuant to CPLR 3212. Century has argued that insurance coverage in the instant matter is barred by the "Exclusion- Bodily Injury to Independent Contractors" endorsement of the policy it issued to plaintiff because Xie was an employee of Golden City, which was hired by plaintiff The record contains, among other things, a copy of the verified complaint in this matter, a copy of Century's verified answer, a copy of plaintiffs contract with Golden City, a copy of the insurance policy Century issued to plaintiff, a copy of a coverage declination letter dated September 23, 2013, and a copy of the complaint in the underlying action. The Century policy provides in Section 1 - Coverages, that: "1. Insuring Agreement. a. We will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies. We will have the right and duty to defend the insured against any 'suit' seeking those damages. However, we will have no duty to defend the insured against any 'suit' seeking damages for 'bodily injury' or 'property damage' to which this insurance does not apply." The Century policy also contains an endorsement entitled "Exclusions - Bodily Injury to Independent Contractors," which provides, in relevant part, the following: "The following exclusion is added to Section I - Coverages, Coverage... Exclusions: This insurance does not apply to: Independent Contractors... 'Bodily injury' to: (1) Any independent contractor or the 'employee' of any 5 5 of 7 FILED: QUEENS COUNTY CLERK 08/24/2018 02:27 PM INDEX NO. 708669/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/24/2018 independent contractor while such independent contractor or their 'employee' is working on behalf of any insured; or (2) The spouse ... of such independent contractor or 'employee' of the independent contractor as a consequence of (1) above. This exclusion applies: (1) Whether the insured may be liable as an employer of in any other capacity; and (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury." Section 5 of the policy, entitled "Definitions," provides the following: "5. 'Employee' includes a 'leased worker,' a 'temporary worker' and a 'volunteer worker" ... 10. 'Leased worker' means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. 'Leased worker' does not include a 'temporary worker'... 18. 'Temporary worker' means a person who is furnished to you to substitute for a permanent 'employee' on leave or to meet seasonal or short term workload conditions... 20. 'Volunteer worker' means a person who is not your 'employee' and who donates his or her work and acts at the direction of and within the scope of duties determined by you, and is not paid a fee, salary or other compensation by you or anyone else for their work performed for you." Upon a careful review of the evidence contained in the record, including the plain terrris of Century's policy read in conjunction with the terms of the written agreement for construction work between plaintiff and Golden City, genuine issues of material fact exist, at the very least, as to whether Golden City was, in fact, an independent contractor or plaintiffs subcontractor at the time of Xie's accident. Thus, Century has failed to adequately demonstrate whether the endorsement entitled "Exclusions - Bodily Injury to Independent Contractors," applies to exclude insurance coverage to plaintiff in this matter. Furthermore, Century has failed to demonstrate whether Xie was or was not, in fact, an employee of Golden City at the time of the accident, as defined by the terms of Century's insurance policy. Despite its contention that coverage is disclaimed since Xie was an employee of Golden City, the court notes that the complaint in the underlying action, as pointed to by Century, is not a verified complaint and that its conclusory allegations may not serve as admissible evidence to establish that fact (CPLR 105 [u]; see also Alexander, Practice Commentaries, McKinney 's Cons Laws of NY, Book 7B, CPLR C105:7; cf Those Certain Underwriters at Lloyds, London v Gray, 49 AD3d 1, 5 [1st Dept 2007]). Therefore, Century has not adequately demonstrated whether the exclusions of the insurance policy do, in fact, apply in this matter to bar insurance coverage. In light of the above determination, 6 6 of 7 FILED: QUEENS COUNTY CLERK 08/24/2018 02:27 PM INDEX NO. 708669/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/24/2018 Century is not entitled to the relief sought on its motion (see Alvarez v Prospect Hosp., -68 NY2d at 324). Accordingly, Western's motions for summary judgment pursuant to CPLR 3212, dismissing the complaint is denied. Century's motion for and order dismissing the complaint pursuant to CPLR 3211 (a)(1), and for summary judgment pursuant to CPLR 3212, dismissing the claims against it, and for an order declaring that Century has no duty to defend and no duty to indemnify plaintiff in the underlying action is denied in its entirety. Dated: Augusi 018 7 of 7