126-128 W. LLC v. Harleysville Worcester Ins. Co.
| Decision Date | 25 January 2022 |
| Docket Number | Index 655555/2020 |
| Citation | 2022 NY Slip Op 30259 (U) |
| Court | New York Supreme Court |
| Parties | 126-128 WEST LLC, Plaintiff, v. HARLEYSVILLE WORCESTER INSURANCE COMPANY, STARR INDEMNITY & LIABILITY GROUP ACCIDENT AND HEALTH INSURANCE TRUST, STARR INDEMNITY & LIABILITY BLANKET ACCIDENT AND HEALTH INSURANCE TRUST, COLONY INSURANCE COMPANY, THE HANOVER INSURANCE GROUP, INC., RSUI INDEMNITY COMPANY, UNITED SPECIALTY INSURANCE COMPANY, MERCHANTS MUTUAL INSURANCE COMPANY, UNITED STATES LIABILITY INSURANCE COMPANY, ROUGE TOMATE NEW YORK LLC, ROUGE TOMATE CORPORATION, ALIB HOLDINGS, INC. A/K/A A. LOGAN INSURANCE BROKERAGE, USI INSURANCE SERVICES LLC, SVALENCIA INSURANCE AGENCY LLC, JAHEL1, INC., F/K/A MORSTAN GENERAL AGENCY, INC., HORIZON PLANNING SERVICES LTD. Defendant. Motion Seq. Nos. 002, 003, 004, 005, 006, 007, 008, 009, 010, 011 |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 22, 23, 24, 25, 26, 27, 28, 29, 60, 61, 86 were read on this motion to/for DISMISS .
The following e-filed documents, listed by NYSCEF document number (Motion 003) 30, 31, 32, 33, 62, 63 were read on this motion to/for DISMISS .
The following e-filed documents, listed by NYSCEF document number (Motion 004) 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 64 65, 87 were read on this motion to/for DISMISS .
The following e-filed documents, listed by NYSCEF document number (Motion 005) 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 66, 67, 78 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .
The following e-filed documents, listed by NYSCEF document number (Motion 006) 80, 81, 82, 83, 84, 85, 90, 93 were read on this motion to/for DISMISSAL .
The following e-filed documents, listed by NYSCEF document number (Motion 007) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 88, 89, 92, 94 were read on this motion to/for DISMISSAL .
The following e-filed documents, listed by NYSCEF document number (Motion 008) 96, 97, 98, 99, 100, 113, 115, 116, 125 were read on this motion to/for DISMISS .
The following e-filed documents, listed by NYSCEF document number (Motion 009) 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 122, 123, 124 were read on this motion to/for DISMISSAL .
The following e-filed documents, listed by NYSCEF document number (Motion 010) 117, 118, 119, 120, 121, 126, 127, 148, 149 were read on this motion to/for DISMISSAL .
The following e-filed documents, listed by NYSCEF document number (Motion 011) 128, 129, 130, 131, 132, 133, 150, 151, 152, 153 were read on this motion to/for DISMISS .
Motion sequence numbers 002 through 011 are consolidated for disposition.
This is an action, inter alia, to recover damages for breach of contract and for a judgment declaring that certain defendants are obligated to defend and indemnify plaintiff in an action to recover damages for personal injuries entitled Matos v 126-128 West LLC, currently pending before the Supreme Court, New York County, under Index No. 150611/2017 (the underlying action).
In motion sequence number 002, defendant Colony Insurance Company ("Colony") moves, pursuant to CPLR 3211, to dismiss the complaint insofar as asserted against it.
In motion sequence number 003, defendant SValencia Insurance Agency LLC ("SValencia") moves, pursuant to CPLR 3211 and 3212, to dismiss the complaint insofar as asserted against it.
In motion sequence number 004, defendant Merchants Mutual Insurance Company ("Merchants") moves, pursuant to CPLR 3211, to dismiss the complaint insofar as asserted against it.
In motion sequence number 005, defendant United States Liability Insurance Company ("United States Liability"), moves pursuant to CPLR 3212, to dismiss the complaint insofar as asserted against it
In motion sequence number 006, defendant United Specialty Insurance Company ("United Specialty") moves pursuant to CPLR 3211, to dismiss the complaint insofar as asserted against it.
In motion sequence number 007, defendant Harleysville Worcester Insurance Company ("Harleysville") moves, pursuant to CPLR 3211, to dismiss the complaint insofar as asserted against it.
In motion sequence number 008, defendant Jahel1 Inc., f/k/a Morstan General Agency Inc. ("Morstan") moves, pursuant to CPLR 3211, to dismiss the complaint insofar as asserted against it.
In motion sequence number 009, defendant USI Insurance Services, LLC ("USI Insurance Services") moves, pursuant to CPLR 3211, to dismiss the complaint insofar as asserted against it.
In motion sequence number 010, defendant The Hanover Insurance Group, Inc. ("Hanover") moves, pursuant to CPLR 3211, to dismiss the complaint insofar as asserted against it.
In motion sequence number 011, defendant Alib Holdings, Inc. a/k/a Logan Insurance Brokerage ("Logan") moves, pursuant to CPLR 3211, to dismiss the complaint insofar as asserted against it.
The accident giving rise to the underlying action occurred at 126-128 West 18th Street in Manhattan (the "Premises"). Plaintiff owns the premises and leased a space on the ground and second floors (the restaurant space) to Rouge Tomate Chelsea LLC (Rouge Tomate) (Lease [NYSCEF Doc. No. 61]). As part of plaintiff's lease with Rouge Tomate (the Rouge Lease), Rouge Tomate agreed to obtain commercial general liability insurance coverage against claims for, inter alia, bodily injury "occurring upon, in about or adjacent to the . . . Premises" and that all insurance policies must name the "Landlord" as an additional insured (Rouge Lease && 18.01 & 18.02, NYSCEF Doc. No. 61).
Rouge Tomate hired CPM Builders Inc. ("CPM") to renovate the restaurant space (Standard Form of Agreement Between Owner and Contractor, AIA Document A102- 2007 [NYSCEF Doc. No. 13]). CPM, in turn, subcontracted with Master Glass Corp. ("Master Glass") to install glass windows for the renovation project and Day & Nite Refrigeration Corp. ("Day & Nite") to perform work on a stove at the site.
On June 22, 2016, Jeffrey Matos, an employee of Day & Nite, was allegedly injured when a glass window in the process of being installed fell on Matos. Matos commenced the underlying action against plaintiff, among others, asserting claims for negligence and various Labor Law violations (Underlying Complaint, NYSCEF Doc. No. 16).
Plaintiff thereafter sought to obtain insurance coverage for the underlying action from Colony, Merchants, United States Liability, United Specialty, Harleysville, and Hanover, among other insurers, contending that it was an additional insured under their respective policies. After the insurers denied coverage, plaintiff commenced the instant action against them to determine their responsibility for defense and indemnification of plaintiff in the underlying action. Plaintiff also names as defendants, inter alia, Rouge Tomate New York, LLC and Rouge Tomate Corporation (hereinafter together the Rouge defendants), as well as SValencia, Morstan, Logan and USI Insurance Services, entities who allegedly served as insurance brokers with respect to the policies at issue. The complaint sets forth the following nine causes of action: a judgment declaring that defendants are required to defend and indemnify plaintiff as an additional insured in the underlying action; violation of Insurance Law §3420(d)(2); breach of contract against the Rouge defendants for failure to procure coverage naming plaintiff as an additional insured; breach of contract against United Specialty; equitable estoppel; misrepresentation; fraud; breach of contract against all defendants; and (9) violation of General Business Law' 349 (a).
Now before the court are motions by Colony (mot. seq. no. 002), SValencia (mot. seq. no. 003), Merchants (mot. seq. no. 004), United States Liability (mot. seq. no. 005), United Specialty (mot. seq. no. 006), Harleysville (mot. seq. no. 007), Morstan (mot. seq. no. 008), USI Insurance Services (mot. seq. no. 009), Hanover (mot. seq. no. 010), and Logan (mot. Seq. no. 011) to dismiss the complaint as asserted against them.
During the pendency of these motions, plaintiff discontinued the action against United Specialty (Notice of Discontinuance, NYSCEF Doc. No. 95). Accordingly, United Specialty's motion to dismiss is denied as academic (mot. seq. no. 006). The remaining motions brought by Colony, SValencia, Merchants, United States Liability, Harleysville, Morstan, USI Insurance Services and Hanover (hereinafter collectively the moving defendants) are decided as follows.
"When . . . a defendant moves for dismissal of a cause of action under CPLR 3211 (a) (1), their documentary evidence must utterly refute[] the plaintiff's factual allegations conclusively establishing a defense as a matter of law" (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., 37 N.Y.3d 169, 175 [2021][internal quotation marks and citations omitted]). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . ., dismissal should not eventuate" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]).
"Dismissal under CPLR 3211(a)(7) is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of...
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