1416 Coney Island Realty LLC v. Wesco Ins. Co.

• Decision Date: 24 August 2022
• Docket Number: Index No. 502686/2019
• Citation: 2022 NY Slip Op 32920 (U)
• Parties: 1416 CONEY ISLAND REALTY LLC and MITCHELL SPITZ, Plaintiffs, v. WESCO INSURANCE COMPANY, Defendant. MELVIN MEYER as Executor of the Estate of MICHELLE MEYER, MOLLINE CASSUTO and ALAN KWARTNER, Nominal Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 32920(U)

1416 CONEY ISLAND REALTY LLC and MITCHELL SPITZ, Plaintiffs,
v.
WESCO INSURANCE COMPANY, Defendant.

MELVIN MEYER as Executor of the Estate of MICHELLE MEYER, MOLLINE CASSUTO and ALAN KWARTNER, Nominal Defendants.

Index No. 502686/2019

Supreme Court, Kings County

August 24, 2022

Unpublished Opinion

PRESENT: HON. INGRID JOSEPH, J.S.C.

DECISION & ORDER

HON. INGRID JOSEPH, J.S.C.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Defendant's motion.

Papers NYSCEF Nos.

Notice of Motion/Affidavits/

Affirmations Annexed.......................................... 125 - 146; 79-96

Affirmation in Opposition Papers........................ 147 - 153; 98-107

Reply to Opposition Papers................................... 154; 108

In this matter, plaintiffs, 1416 Coney Island Realty LLC and Mitchell Spitz ("Mr. Spitz"), referred to collectively as ("plaintiffs") seek a judgment declaring that their commercial general liability insurer, defendant Wesco Insurance Company ("Wesco") must defend and indemnify nominal defendants, Melvin Meyer, as Executor of the Estate of Mpichelle Meyer, and Molline Cassuto and Alan Kwartner, referred to collectively as ("the lessors"), in an action

1

captioned Ira Spodek, et al. v Michelle Meyer, et al. ^[1] in the Supreme Court of the State of New York, County of Kings, Index No. 502549/2017 ("premises liability case"), as additional insureds under the commercial general liability policy. Plaintiffs and the nominal defendants previously moved for summary judgment (in motion sequence 5) on the First, Third and Fifth causes of action for declarations that Wesco is obligated to defend, indemnify and pay all legal fees for a counsel of their choosing and litigation costs incurred to defend the premises liability case. In the cross motion (motion sequence 6) Wesco sought summary judgment declaring that it has no duty to defend or indemnify the nominal defendants (lessors) in the premises liability case. However, the court, upon Wesco's failure to appear for oral argument on August 4, 2021, granted the plaintiffs' motion on default ("August 2021 order") and marked Wesco's cross motion for summary judgment (motion sequence 6) off the calendar.

In this case Wesco moves (motion sequence 8) pursuant to CPLR § 5015 to vacate the August 2021 order which granted plaintiffs' underlying motion for summary judgment (motion sequence 5). Upon vacatur, Wesco seeks an order denying plaintiffs' motion and further, an order pursuant to CPLR § 3025 granting Wesco leave to amend its answer to include a counterclaim against Mr. Spitz. Wesco also requests an order pursuant to CPLR § 3124 compelling plaintiffs and nominal defendants to fully respond to Wesco's First Set of Interrogatories and an order pursuant to...