7951 Albion, LLC v. Clear Blue Specialty Ins. Co., 2:19-cv-7309 (DRH) (AKT)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtHURLEY, Senior District Judge
Citation548 F.Supp.3d 321
Parties 7951 ALBION, LLC d/b/a Club Amadeus, Plaintiff, v. CLEAR BLUE SPECIALTY INSURANCE COMPANY, Defendant.
Docket Number2:19-cv-7309 (DRH) (AKT)
Decision Date09 July 2021

548 F.Supp.3d 321

7951 ALBION, LLC d/b/a Club Amadeus, Plaintiff,
v.
CLEAR BLUE SPECIALTY INSURANCE COMPANY, Defendant.

2:19-cv-7309 (DRH) (AKT)

United States District Court, E.D. New York.

Signed July 9, 2021


548 F.Supp.3d 322

Attorney for Plaintiff: ANDREW K. STAULCUP P.C., 390 N. Broadway 3rd Floor, Jericho, NY 11753, By: Andrew Staulcup, Esq.

Attorneys for Defendant: GALLO VITUCCI KLAR LLP, 90 Broad Street, 12th Floor, New York, NY 10004, By: William Parra, Esq., BATESCAREY LLP, 191 North Wacker, Suite 2400, Chicago, IL 60606, By: Jordan S. Steinway, Esq.

MEMORANDUM AND ORDER

HURLEY, Senior District Judge:

548 F.Supp.3d 323

INTRODUCTION

Plaintiff 7951 Albion, LLC d/b/a Club Amadeus ("Plaintiff") brings this action seeking a declaratory judgment that Defendant Clear Blue Specialty Insurance Company ("Defendant") owes a duty to defend and indemnify Plaintiff against claims asserted in an underlying civil lawsuit filed in New York State Supreme Court, County of Kings. Presently before the Court is Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, Defendant's motion is GRANTED.

BACKGROUND

The following facts, taken from Defendant's Local Rule 56.1 Statement, (Def. Statement of Material Facts ("Def. 56.1") [DE 39-2]), are undisputed, as Plaintiff did not submit a Rule 56.1 Counter Statement, (see Def. Reply at 2–3 [DE 22]). A district court, however, "may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement. It must be satisfied that the citation to evidence in the record" entitles the movant to the relief sought. Vermont Teddy Bear Co. v. 1-800 Beargram Co. , 373 F.3d 241, 244 (2d Cir. 2004).

Plaintiff, a limited liability company with a single New York-citizen member, owns and operates Amadeus Nightclub at 7951 Albion Avenue, Elmhurst, New York. (Def. 56.1 ¶ 4; Notice of Removal ¶¶ 6–7 [DE 1]). Defendant is an insurance company organized and existing under the laws of North Carolina with a principal place of business in Puerto Rico. (Notice of Removal ¶ 8). Between February 15, 2018 and February 19, 2019, Defendant insured Plaintiff pursuant to a Commercial General Liability insurance contract with Policy Number AE04-00000070-01. (Def. 56.1 ¶ 13). Entered March 10, 2018, the contract's coverages, endorsements, and exclusions included: Coverage A – Bodily Injury and Property Damage Liability; Coverage B – Personal and Advertising Injury Liability; Endorsement – Sublimited Assault or Battery; Exclusion – Assault and Battery; and Exclusion – Independent Contractors ("Independent Contractors Exclusion"). (Insurance Policy No. AE04-00000070-01 (the "Policy"), Ex. 3 [DE 21-6] to Decl. of Jordan S. Steinway ("Steinway Decl.") [DE 21-3]). For readability and to avoid redundancy, the precise language of the relevant provisions is recited below where necessary.

On March 21, 2018, the Policy was amended by endorsement of an additional exclusion: Exclusion – Third Party or Contracted Security ("Contracted Security Exclusion"). (Id. at 000095). Plaintiff contends this exclusion was added "without any consideration" and thus "should not be deemed part of the contract between the parties." (Pl. Opp. at 11). According to Plaintiff's President, "the original policy issued did not have the [Contracted Security Exclusion]," he "did not receive any benefit or consideration" for it, and "his understanding [is] that this exclusion does not affect my Assault and Battery policy of

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$1,000,000." (Aff. of Mohammad Ali Amanollahi, Ex. C [DE 21-11] to Declaration of Andrew Staulcup [DE 21-8] ("Staulcup Decl.")). Both parties purport to submit "certified" copies of the Policy; but, consistent with their positions, Defendant's copy contains the Contracted Security Exclusion endorsement and Plaintiff's does not. (Compare Policy at 000094–000095, with Ex. B [DE 21-10] to Staulcup Decl.).

On November 11, 2018, nonparty Sabino Coppola visited Amadeus Nightclub and was allegedly "physically detained, assaulted, beaten and battered" by another patron, suffering "serious injuries, ... pain, shock and mental anguish." (Am. Verified Compl. ¶¶ 24, 281 (the "Underling Action Am. Compl."), Sabino Coppola v. Amadeus Nightclub et al. , Index No. 506969/2019 (N.Y. Sup. Ct., Kings Cnty.) (the "Underlying Action"), Ex. 2 [DE 21-5] to Steinway Decl.). This incident is hereinafter referred to as the "Coppola Altercation." In a lawsuit filed March 29, 2019, Coppola named, among others, Plaintiff and Plaintiff's hired security, Professional Corporate Security Services, Inc. ("PCSS"), as defendants, alleging their negligence caused his injuries. (Def. 56.1 ¶¶ 3, 6; Underling Action Am. Compl. ¶ 26). Defendant has not defended, and is not defending, Plaintiff in the Underlying Action. (Pl. Opp. at 5).

Plaintiff commenced this lawsuit in New York State Supreme Court, Nassau County on November 2, 2019. [DE 1-1]. Defendant removed the action to federal court on December 31, 2019, [DE 1], and moved for summary judgment on December 18, 2020, [DE 21].

LEGAL STANDARD

Summary judgment, pursuant to Rule 56, is appropriate only where the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The relevant governing law in each case determines which facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When making this determination, a court must view all facts "in the light most favorable" to the non-movant, Tolan v. Cotton , 572 U.S. 650, 656–57, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014), and "resolve all ambiguities and draw all permissible factual inferences in favor of the [non-movant]," Johnson v. Killian , 680 F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft , 336 F.3d 128, 137 (2d Cir. 2003) ). Thus, "[s]ummary judgment is appropriate [only] where the record taken as a whole could not lead a rational trier of fact to find for the [non-movant]." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ) (internal quotation marks omitted).

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts demonstrating that there is a genuine dispute of material fact to be tried. Wright v. Goord , 554 F.3d 255, 266 (2d Cir. 2009). The non-movant must present more than a "scintilla of evidence," Fabrikant v. French , 691 F.3d 193, 205 (2d Cir. 2012) (quoting Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ), or "some metaphysical doubt as to the material

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facts," Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011) (quoting Matsushita , 475 U.S. at 586–87, 106 S.Ct. 1348 ), and "may not rely on conclusory allegations or unsubstantiated speculation," id. (quoting FDIC v. Great Am. Ins. Co. , 607 F.3d 288, 292 (2d Cir. 2010) ).

The district court considering a summary judgment motion must also be "mindful ... of the underlying standards and burdens of proof," Pickett v. RTS Helicopter , 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ), because the "evidentiary burdens that the respective parties will bear at trial guide district courts in their determination[s] of summary judgment motions," Brady v. Town of Colchester , 863 F.2d 205, 211 (2d Cir. 1988). "[W]here the [non-movant] will bear the burden of proof on an issue at trial, the moving party may satisfy its burden by pointing to an absence of evidence to support an essential element of the [non-movant's] case." Crawford v. Franklin Credit Mgmt. Corp. , 758 F.3d 473, 486 (2d Cir. 2014) (quoting Brady , 863 F.2d at 210–11 ) (internal quotation marks omitted). Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish his claim, the burden shifts to the non-movant to offer "persuasive evidence that his claim is not ‘implausible.’ " Brady , 863 F.2d at 211 (citing Matsushita , 475 U.S. at 587, 106 S.Ct. 1348 ). "[A] complete failure of proof concerning an essential element of the [non-movant's] case necessarily renders all other facts immaterial." Crawford , 758 F.3d at 486 (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).

DISCUSSION

As the Court's jurisdiction exists pursuant to the parties’ diversity of citizenship, the law of the forum state—New York—governs the choice of law over the dispute. AEI Life LLC v. Lincoln Benefit Co. , 892 F.3d 126, 132 (2d Cir. 2018). "Under New York law, questions regarding an insurer's duties in respect to events that occurred in New York are governed by New York law." U.S. Underwriters Ins. Co. v. Beckford , 1998 WL 23754, at *2 (E.D.N.Y. Jan. 20, 1998) (citing U.S. Underwriters...

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  • DeVito v. Neiman, 19-CV-5099 (ARR) (RML)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 9, 2021
    ...from the latter, not the former. See, e.g. , N.Y. County Law § 650 ; N.Y. City Civ. Ct. Act § 1609 ; Bello , 2020 WL 2319115, at *6 ; 548 F.Supp.3d 321 Korsinsky , 993 N.Y.S.2d at 95 ; Enstrom , 17 N.Y.S.2d at 967.Because I conclude that plaintiff has stated a claim for conversion against B......
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  • DeVito v. Neiman, 19-CV-5099 (ARR) (RML)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 9, 2021
    ...from the latter, not the former. See, e.g. , N.Y. County Law § 650 ; N.Y. City Civ. Ct. Act § 1609 ; Bello , 2020 WL 2319115, at *6 ; 548 F.Supp.3d 321 Korsinsky , 993 N.Y.S.2d at 95 ; Enstrom , 17 N.Y.S.2d at 967.Because I conclude that plaintiff has stated a claim for conversion against B......

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