QBE INSURANCE CORPORATION plf-ap, v. PUBLIC SERVICE MUTUAL INSURANCE COMPANY, def-res, 33RD STREET BAKERY, INC. def

8958. QBE INSURANCE CORPORATION plf-ap, v. PUBLIC SERVICE MUTUAL INSURANCE COMPANY, def-res, 33RD STREET BAKERY, INC. def — Abrams, Gorelick, Friedman & Jacobson, LLP, New York (Michael E. Gorelick of counsel), for ap — Weber Gallagher Simpson Stapleton Fires & Newby LLP, New York (Kenneth M. Portner of counsel), for res — Order, Supreme Court, New York County ((Milton A. Tingling, J.), entered April 18, 2012, which, to the extent appealed from as limited by the briefs, denied plaintiffs' cross motion for summary judgment, unanimously reversed, on the law, with costs, plaintiffs' cross motion granted, and it is declared that the insurance policy issued by defendant insurer, Public Service Mutual Insurance Company (PSM), is primary for plaintiff Dierks Heating Company, Inc. (Dierks), its additional insured, and that it has a duty to defend and indemnify Dierks in the underlying personal injury action, and reimburse Dierks' insurer for attorneys' fees and expenses.

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8958. QBE INSURANCE CORPORATION plf-ap, v. PUBLIC SERVICE MUTUAL INSURANCE COMPANY, def-res, 33RD STREET BAKERY, INC. def — Abrams, Gorelick, Friedman & Jacobson, LLP, New York (Michael E. Gorelick of counsel), for ap — Weber Gallagher Simpson Stapleton Fires & Newby LLP, New York (Kenneth M. Portner of counsel), for res — Order, Supreme Court, New York County ((Milton A. Tingling, J.), entered April 18, 2012, which, to the extent appealed from as limited by the briefs, denied plaintiffs’ cross motion for summary judgment, unanimously reversed, on the law, with costs, plaintiffs’ cross motion granted, and it is declared that the insurance policy issued by defendant insurer, Public Service Mutual Insurance Company (PSM), is primary for plaintiff Dierks Heating Company, Inc. (Dierks), its additional insured, and that it has a duty to defend and indemnify Dierks in the underlying personal injury action, and reimburse Dierks’ insurer for attorneys’ fees and expenses.

The underlying personal injury action was commenced by an employee of defendant 33rd Street Bakery, a tenant in a building owned by Dierks. PSM issued a commercial general liability (CGL) policy to the Bakery, and in accordance with the lease, Dierks was listed as an additional insured. Dierks also had its own CGL policy issued by plaintiff QBE Insurance Corporation.

QBE INSURANCE CORPORATION plf-ap, v. PUBLIC SERVICE MUTUAL INSURANCE COMPANY, def-res, 33RD STREET BAKERY, INC. def

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