244 Madison Realty Corp. v. Utica First Ins. Co.

• Decision Date: 11 May 2022
• Docket Number: Index No. 654238/2019,Motion Seq. No. 001
• Parties: 244 MADISON REALTY CORP., MAXWELL-KATES, INC., and STRATHMORE INSURANCE COMPANY, Plaintiffs, v. UTICA FIRST INSURANCE COMPANY, Defendant.
• Court: New York Supreme Court

2022 NY Slip Op 31552(U)

244 MADISON REALTY CORP., MAXWELL-KATES, INC., and STRATHMORE INSURANCE COMPANY, Plaintiffs,
v.
UTICA FIRST INSURANCE COMPANY, Defendant.

Index No. 654238/2019, Motion Seq. No. 001

Supreme Court, New York County

May 11, 2022

Unpublished Opinion

Motion Date 08/28/2020

PRESENT: HON. LOUIS L. NOCK PART Justice

DECISION + ORDER ON MOTION

HON. LOUIS L. NOCK, JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, and 61 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, it is ordered that the plaintiffs' motion and defendant's cross-motion are determined as follows.

In this insurance coverage dispute, plaintiffs 244 Madison Realty Corp. ("244 Madison"), Maxwell-Kates, Inc. ("MK"), and Strathmore Insurance Company ("Strathmore") (collectively, "plaintiffs") move, pursuant to CPLR 3212, for summary judgment declaring that defendant Utica First Insurance Company ("Utica") (1) must provide additional insured coverage to plaintiffs in an underlying personal injury action, Jovita Sibrian v 244 Madison Realty Corp. and Maxwell-Kates, Inc., Index No. 708235/14 (Sup Ct Queens County) ("underlying action"); (2) is obligated to defend 244 Madison in the underlying action; and (3) reimburse plaintiffs for attorneys' fees and expenses incurred in the defense of the underlying action.

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Utica cross-moves pursuant to CPLR 3212 and 3001 and Insurance Law § 3420 (d) (2) for summary judgment and a declaration that Utica is not obligated to defend or indemnify plaintiffs in the underlying action or to otherwise reimburse plaintiffs.

BACKGROUND

On August 13, 2002, 244 Madison, as owner of the building located at 244 Madison Avenue, New York, New York, entered into a lease agreement with non-party John Kapetanos (NYSCEF Doc No. 20, ¶¶ 13-14). Kapetanos, as Chief Executive Officer of Pirgos Food Corp., began occupying the premises and conducting business as the Moonstruck Diner ("Moonstruck") (id., ¶¶ 19-20).

The Rider to the Lease Agreement states in relevant part:

"46. Non-Liability, Indemnification and Insurance

Supplementing Article 8 of the lease:

(b) Tenant and Tenant's subtenants shall carry and maintain in force from and after the date of this lease and through the term hereof, at the expense solely of Tenant and Tenant's subtenants, (i) workers' compensation and other required statutory forms of insurance, in statutory limits, (ii) comprehensive general public liability insurance, which shall be written on an occurrence basis naming Tenant as the insured with Owner and Owner's individual partners, officers, shareholders, managing and other agents and, if requested by Owner, others having an interest in the Land and/or the Building, as additional insureds, in limits (subject to increase at Owner's reasonable request) of not less than Two Million and 00/00 ($2, 000, 000.00) Dollars for bodily and personal injury or death in any one occurrence...."

(NYSCEF Doc No. 31 at 13.)

Utica First issued the Utica Primary Policy to "Moonstruck on Madison Pirgos Food Corp DBA" for the policy period beginning May 10, 2011, through May 10, 2012 (NYSCEF Doc No. 26). Utica First also issued commercial excess liability policy number ULC 1376364

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("excess policy") to Pirgos Food d/b/a Moonstruck for the same policy period (excess policy, NYSCEF Doc No. 46).

In the underlying personal injury action, Jovita Sibrian ("Sibrian), alleges that on May 9, 2012, she was injured when she slipped and fell due to a leaking pipe at the premises (NYSCEF Doc No. 3). Sibrian filed suit on November 5, 2014, against 244 Madison and MK as owner and managing agent of the premises, respectively. Strathmore, pursuant to a general liability insurance policy (policy no. 8131M16117) ("Strathmore policy") issued to 244 Madison, undertook the defense of 244 Madison and MK (NYSCEF Doc No. 32 ¶ 10).

In January 2017, Strathmore received a lien letter from the Worker's Compensation carrier for Sibrian's claim, which identified Sibrian's employer as Pirgos Food Corp. (NYSCEF Doc No. 59 ¶ 8). On May 4, 2017, Strathmore's claims examiner, Tiffany Romain, located a claim made in 2014 to Utica (id. ¶ 10). That same day, Strathmore tendered the defense and indemnity of 244 Madsion and MK to Utica (NYSCEF Doc No. 7). On June 8, 2017, Utica denied tender of the defense of 244 Madison and MK based in part on the employee injury exclusion and failure to provide timely notice as required by the policy (NYSCEF Doc No. 8). By separate letter dated June 8, 2017, Utica also denied the tender of the defense and indemnity of 244 Madison and MK under the Utica excess policy (NYSCEF Doc. No. 9). By letter dated October 3, 2018, Strathmore retendered the defense and indemnity of 244 Madison and MK to Utica (NYSCEF Doc No. 10). It stated that Utica's June 8, 2017, tender denial did not describe with particularity the factual basis for the denial of coverage and referred to Section 4 of the Lease Agreement, which required Moonstruck to maintain liability insurance naming 244...