AIX Special TY Ins. Co. v. Steel FAB NY, Inc.

• Citation: 2021 NY Slip Op 32415 (U)
• Court: United States State Supreme Court (New York)
• Decision Date: 28 October 2021
• Parties: AIX SPECIAL TY INSURANCE COMPANY, Plaintiff, v. STEEL FAB NY, INC., SULLIVAN HEIGHTS, LLC, ZNKO CONSTRUCTION, INC., G & C CRANE SERVICE, LLC, OSWALDO ARTURO QUINDUISACA CHILLOGALLI, JUAN CARLOS RIVERA VIVANCO, Defendant(s)

2021 NY Slip Op 32415(U)

AIX SPECIAL TY INSURANCE COMPANY, Plaintiff,
v.
STEEL FAB NY, INC., SULLIVAN HEIGHTS, LLC, ZNKO CONSTRUCTION, INC., G & C CRANE SERVICE, LLC, OSWALDO ARTURO QUINDUISACA CHILLOGALLI, JUAN CARLOS RIVERA VIVANCO, Defendant(s)

Supreme Court, Kings County

October 28, 2021

Unpublished Opinion

After oral argument, the following papers were read on this motion pursuant to CPLR 2219(a):

Papers

Numbered

Plaintiff AIX Specialty Insurance Company's ("ASIC") motion dated January 21, 2020 seeks an Order: (1) granting default judgments in ASIC's favor pursuant to CPLR 3215 against Defendant Steel Fab NY, Inc. ("Steelfab") and Defendant Oswaldo Arturo Quinduisaca Chillogalli ("Chillogalli"); (2) granting Summary Judgment in ASIC's favor pursuant to CPLR 3212 against Sullivan Heights, LLC ("Sullivan Heights"), ZNKO Construction, Inc. ("ZNKO"), G & C Crane Service LLC, and Juan Carlos Rivera Vivanco; (3) adjudging, declaring and decreeing that: there is no coverage under the ASIC Policy available to Steelfab, ZNKO and Sullivan Heights, or any other persons or entities, in the underlying actions; that ASIC has no obligation to defend or indemnify Steelfab, ZNKO, Sullivan Heights, or any other persons or entities in the underlying actions; and (4) awarding any other relief this Court deems just, proper and equitable; Supporting papers: Attorney Affirmation of Michael P. Kandler, Esq., affirmed on January 21, 2020; Affidavit of Steven M. Mills, President of Excess and Surplus Lines for the Hanover Insurance Group, Inc., which includes AIX Specialty Insurance Company ("ASIC") (collectively, "Hanover"), sworn to on January 13, 2020; Certificate of Conformity of Lori Fowler, Notary Public, State of Georgia, January 13, 2020; EXHIBIT(S) -A (Motion #1) Kandler Ex. A-Vivanco Complaint EXHIBIT(S) -B (Motion #1) Kandler Ex. B - Vivanco T.P. Complaint EXHIBIT(S) -C (Motion #1) Kandler Ex. C-Chillogalli Complaint EXHIBIT(S) -D (Motion #1) Kandler Ex. D-Chillogalli T.P. Complaint EXHIBIT(S) - E (Motion # 1) Kandler Ex. E - DJ Complaint EXHIBIT(S) -F (Motion #1) Kandler Ex. F - Sullivan/ZNKO Answer to DJ EXHIBIT(S) -G (Motion #1) Kandler Ex. G-G&C Answer to DJ EXHIBIT(S) -H (Motion #1) Kandler Ex. H- Vivanco Answer to DJ EXHIBIT(S) -I (Motion #1) Kandler Ex. I -ASO re DJ on SteelFab EXHIBIT(S) -J (Motion #1) Kandler Ex. J-AOS re DJ on Chillogalli

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EXHIBIT(S) - K (Motion # 1) Kandler Ex. K - ASIC's Notice to SteelFab EXHIBIT(S) -L (Motion #1) Kandler Ex. L- Motion and Order Attorney Affirmation of Sarah J. Delaney, Esq., affirmed on January 17, 2020; EXHIBIT(S) - 1 (Motion #1) Delaney Ex. 1 -Printouts of NYC DOB EXHIBIT(S) -2 (Motion #1) Delaney Ex. 2-NYC DOB email responses to FOIL request EXHIBIT(S) - 3 (Motion # 1) Delaney Ex.*3 - Copies of NYC DOB online records EXHIBIT(S) - 4 (Motion #1) Delaney Ex. 4 - Printout of public online records re SteelFab EXHIBIT(S) - 5 (Motion #1) Delaney Ex. 5 - Printout of public online records re 2NKO EXHIBIT(S) - 6 (Motion #1) Delaney Ex. 6 - FOIL Request Affidavit of Donna M. Normile, sworn to on January 16, 2020, employed by Hanover Insurance Group ("Hanover") as a National Liability Adjuster. Certificate of Conformity of Janis Simonell·i, dated January 16, 2020; EXHIBIT(S) -1 (Motion #1) Normile Ex. 1 -Policy EXHIBIT(S) - 2 (Motion #1) Normile Ex. 2 -11/17/17 letter EXHIBIT(S) - 3 (Motion #1) Normile Ex. 3 - Tender letter EXHIBIT(S) - 4 (Motion #1) Normile Ex. 4 - 12/12/17 Disclaimer EXHIBIT(S) - 5 (Motion #1) Normile Ex. 5 - 9/5/18 Email (S) -6 (Motion #1) Normile Ex. 6 -9/7/18 Denial letter EXHIBIT(S) - 7 (Motion #1) Normile Ex. 7 - Order EXHIBIT(S) - 8 (Motion #1) Normile Ex. 8 -10/4/18 letter EXHIBIT(S) -9 (Motion # 1) Normile Ex. 9- Vivanco VBOP Affidavit of Steven M. Mills, President of Excess and Surplus Lines for the Hanover Insurance Group, Inc., which includes ASIC (collectively, "Hanover"), sworn to on January 13, 2020; Certificate of Conformity of Lori Fowler, dated January 13, 2020; EXHIBIT(S) - A (Motion #1) Mills Ex. A - Policy EXHIBIT(S) - B (Motion # 1) Mills Ex. B - Steelfab's Application EXHIBIT(S) - C (Motion # 1) Mills Ex. C - CGL Classification Guide Entries	`
Proposed intervenor-defendant Mt. Hawley Insurance Company's ("Mt, Haw ley") Motion to Intervene, dated January 24, 2020 (Motion #2); Attorney Affirmation of John A. Mattoon, affirmed on January 24, 2020; EXHIBIT(S) -A (Motion#2)AIX Complaint EXHIBIT(S) -B (Motion #2) Steelfab Subcontracts - EXHIBIT(S) - C (Motion #2) Mt. Hawley Policy EXHIBIT(S) -D (Motion #2) Mt.Hawley's Proposed Answer
Defendants Sullivan Heights LLC and ZNKO Construction' Opposition to Plaintiffs Motion, by Joanna M. Roberto, Esq., duly affirmed on May 15, 2020 (Motion #1); EXHIBIT(S) -A (Motion #1) Insurance Journal Article

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EXHIBIT(S) -B (Motion #1) Heather Clemente Affidavit EXHIBIT(S) -C (Motion #l`) Email

Defendants Sullivan Heights LLC and ZNKO Construction's Cross Motion dated May 15, 2020 (Motion#3) (a) pursuant to CPLR §§ 3124, 3125 and 3126, dismissing Plaintiff's Complaint and dismissing all claims against Defendants, Sullivan Heights, LLC and ZNKO Construction, Inc. ("Defendants") for failing to provide discovery; (b) precluding Plaintiff from offering evidence in support of the allegations in Plaintiffs Complaint at trial for failure to provide discovery; or in the alternative (c) compelling Plaintiff to respond to outstanding discovery by a date certain and (d) and further relief as this Court may deem just, proper and equitable under the circumstances; Attorney Affirmation of Joanna M. Roberto, Esq., and Attorney Affirmation of good faith, each affirmed on May 15, 2020; EXHIBIT(S) -A (Motion #3) Denial of Insurance Letter EXHIBIT(S) -B (Motion #3) Initial S&C EXHIBIT(S) -C (Motion #3) Verified Answer EXHIBIT(S) -D (Motion #3) Interrogatories EXHIBIT(S) -E (Motion #3) Notice of EXHIBIT(S) -F (Motion #3) Pltfs response to Demands EXHIBIT(S) -G (Motion #3) Pltf response to Inter EXHIBIT(S) -H (Motion #3) Normile Affidavit EXHIBIT(S) -I (Motion#3)Mills Affidavit EXHIBIT(S) - J (Motion #3) Plaintiffs Privilege Log 10.17.19 EXHIBIT(S) - K (Motion #3) 10.17.19 Ltr to Pltf Ltr to Pltf EXHIBIT(S) -L (Motion #3) 5.5.20 Ltr to Pltf

Plaintiff's Attorney Affirmation of Michael P. Kandler, affirmed on May 15, 2020, in opposition to defendant-proposed intervenor Mt. Hawley Insurance Company ("Mt. Hawley")`s Motion to Intervene (Motion #3). Affidavit of Donna M. Normile, sworn to on January 16, 2020, a National Liability Adjuster at Hanover; Certificate of Conformity of Janis A. Simonelli, dated January 16, 2020; Affidavit of Steven M. Mills, sworn to on January 13, 2020; President of Excess and Surplus Lines for the Hanover; Certificate of Conformity of Lori Fowler, dated January 13, 2020;

Plaintiff's Attorney Affirmation of Michael P. Kandler, affirmed on September 4, 2020, in Opposition and in Reply to defendants Sullivan Heights, LLC ("Sullivan"), ZNKO Construction, Inc. ("ZNKO") and Proposed Intervenor Mt. Hawley Ins. Co., and in further support of ASIC s Motion for the entry of Default Judgments and for Summary Judgment (Motion # 1, 2, 3); EXHIBIT(S) - A (Motion #1) 1/24/2017 Steel Fab Proposal and 8/1/2017 Subcontract Agreement between ZNKO and Steel Fab EXHIBIT(S) -B (Motion #1) Documents received from OSHA Concerning subject Occurrence

EXHIBIT(S) - C (Motion # 1) OSHA Documents Obtained and Submitted by Counsel for Vivanco in underlying action EXHIBIT(S) -D (Motion #1) Motion papers and Orders in Underlying actions Regarding Motions to Be Relieved as Counsel

Defendants, Sullivan Heights LLC ("Sullivan Heights") and ZNKO Construction ("ZNKO")'s Sur-Reply to Plaintiff AIX Specialty Insurance Company's ("Plaintiff or "AIX") Affirmation in Reply filed in accordance widithiš Court's permission as provided during the hearing held on September 16, 2020, by affirmation of Joanna M. Roberto, Esq., affirmed on September 30, 2020

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DECISION /ORDER

Hon. Richard J. Montelione, J.

Plaintiff AIX...