25-01 Newkirk Ave., LLC v. Everest Nat'l Ins. Co.
| Decision Date | 08 April 2015 |
| Docket Number | 2014-04084, Index No. 501172/13. |
| Citation | 2015 N.Y. Slip Op. 02958,7 N.Y.S.3d 325,127 A.D.3d 850 |
| Parties | 25–01 NEWKIRK AVENUE, LLC, appellant, v. EVEREST NATIONAL INSURANCE COMPANY, respondent. |
| Court | New York Supreme Court — Appellate Division |
127 A.D.3d 850
7 N.Y.S.3d 325
2015 N.Y. Slip Op. 02958
25–01 NEWKIRK AVENUE, LLC, appellant
v.
EVEREST NATIONAL INSURANCE COMPANY, respondent.
2014-04084, Index No. 501172/13.
Supreme Court, Appellate Division, Second Department, New York.
April 8, 2015.
Mark L. Cortegiano, Middle Village, N.Y., for appellant.
Carroll McNulty & Kull, LLC, New York, N.Y. (Denise M. Marra of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and BETSY BARROS, JJ.
Opinion
In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying personal injury action entitled Michel v. 25–01 Newkirk Avenue, LLC, pending in the Supreme Court, Kings County, under Index No. 8871/12, the plaintiff appeals from an order of the Supreme Court, Kings County (Silber, J.), dated March 6, 2014, which granted the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint and for a declaration that it is not obligated to defend or indemnify the plaintiff in the underlying action.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion is denied.
The defendant issued a general liability policy covering an apartment building owned by the plaintiff (hereinafter the premises). In an underlying personal injury action, the plaintiff was sued by a former tenant who allegedly sustained injury from lead exposure while residing at
the premises. The plaintiff advised the defendant of the claim, and the defendant disclaimed coverage, invoking a lead exclusion it had added to the policy after the plaintiff failed to perform lead testing at the premises pursuant to an alleged agreement between the parties. The plaintiff then commenced this action, inter alia, for a judgment declaring that the defendant was obligated to defend and indemnify it in the underlying action, arguing that the addition of the lead exclusion to the policy was invalid. The defendant moved pursuant to CPLR 3211(a)(1) to dismiss the complaint based on a defense founded upon documentary evidence and for a judgment declaring that it is not obligated to
defend or indemnify the plaintiff in the underlying action. The Supreme Court granted the motion. We reverse.
“A motion pursuant to CPLR 3211(a)(1) to dismiss based on documentary evidence may be appropriately...
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