Majority
In an action to recover damages for personal injuries, etc., and a third third-party action, inter alia, for a judgment declaring that the third third-party defendant, Western Heritage Insurance Company, is obligated to defend and indemnify the second third-party defendant/third third-party plaintiff, King’s Construction & Supplies, LLC, in the second third-party action, entitled Metal Stone Constr., Inc. v King’s Constr. & Supplies, LLC, pending in the Supreme Court, Kangs County, under index No. 75831/12, the third third-party defendant, Western Heritage Insurance Company, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Walker, J.), dated May 27, 2014, as denied that branch of its motion which was for summary judgment dismissing the third third-party complaint, and granted the cross motion of the second third-party defendant/third third-party plaintiff, King’s Construction & Supplies, LLC, for summary judgment, in effect, declaring that it is obligated to defend and indemnify King’s Construction & Supplies, LLC, in the second third-party action.
Ordered that the order is affirmed insofar as appealed from, with costs to the second third-party defendant/third third-party plaintiff, King’s Construction & Supplies, LLC, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the third third-party defendant, Western Heritage Insurance Company, is obligated to defend and indemnify the second third-party defendant/third third-party plaintiff, King’s Construction & Supplies, LLC, in the second third-party action.
“In determining a dispute over insurance coverage, we first look to the language of the policy” (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208 , 221 [2002]). Although the insurer has the burden of proving the applicability of an exclusion (see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304 , 311 [1984]), it is the insured’s burden to establish the existence of coverage (see Lavine v Indemnity Ins. Co., 260 NY 399 , 410 [1933]). Thus, “[where] the existence of coverage depends entirely on the applicability of [an] exception to the exclusion, the insured has the duty of demonstrating that it has been satisfied” (Borg-Warner Corp. v Insurance Co. of N. Am., 174 AD2d 24 , 31 [1992]).
“[I]n construing an insurance policy, any ambiguities must
Western Heritage’s remaining contention is not properly before this Court, as it was raised for the first time in its reply papers (see Zarabi v Movahedian, 136 AD3d 895 [2016]; Leavy v Merriam, 133 AD3d 636 [2015]).
Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that Western Heritage is obligated to defend and indemnify King’s Construction in the second third-party action (see Lanza v Wagner, 11 NY2d 317 , 334 [1962]).
Hall, J.P., Austin, Miller and Maltese, JJ., concur.
Cases cited
- Consolidated Edison Co. of New York, Inc. v. Allstate Insurance 98 NY2d 208 at 221 p. 1131
- Seaboard Surety Co. v. Gillette Co. 64 NY2d 304 at 311 p. 1131
- Lavine v. Indemnity Insurance Co. of North America 260 NY 399 at 410 p. 1131
- Borg-Warner Corp. v. Insurance Co. of North America 174 AD2d 24 at 31 p. 1131
- White v. Continental Casualty Co. 9 NY3d 264 at 267 p. 1132
- Yeshiva Viznitz v. Church Mutual Insurance 132 AD3d 853 at 854 p. 1132
- Zarabi v. Movahedian 136 AD3d 895 p. 1132
- Leavy v. Merriam 133 AD3d 636 p. 1132
- Lanza v. Wagner 11 NY2d 317 at 334 p. 1132