Cumberland Farms, Inc. v. Tower Grp., Inc.

• Decision Date: 23 March 2016
• Citation: 137 A.D.3d 1068,28 N.Y.S.3d 119
• Parties: CUMBERLAND FARMS, INC., respondent-appellant, v. TOWER GROUP, INC., et al., appellants-respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1068
28 N.Y.S.3d 119

CUMBERLAND FARMS, INC., respondent-appellant,
v.
TOWER GROUP, INC., et al., appellants-respondents, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

March 23, 2016.

28 N.Y.S.3d 120

Max W. Gershweir, New York, N.Y., for appellants-respondents.

Maynard, O'Connor, Smith, & Catalinotto, LLP, Albany, N.Y. (Justin W. Gray of counsel), for respondent-appellant.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, ROBERT J. MILLER, BETSY BARROS, JJ.

In an action, inter alia, for a judgment declaring that the defendants Tower Group, Inc., Tower Group Companies, and Mountain Valley Indemnity Company are obligated to defend and indemnify the plaintiff in an underlying action entitled Zevlakis v. Cumberland Farms, Inc., pending in the Supreme Court, Queens County, under Index No. 13371/10, the defendants Tower Group, Inc., Tower Group Companies, and Mountain Valley Indemnity Company appeal from so much of an order of the Supreme Court, Queens County (Lane, J.), dated June 10, 2014, as denied their motion, in effect, for summary judgment declaring that they are not obligated to defend or indemnify the plaintiff in the underlying action, and the plaintiff cross-appeals from so much of the same order as denied those branches of its cross motion which were for summary judgment declaring that the defendant Mountain Valley Indemnity Company is obligated to defend and indemnify it in the underlying action and dismissing the affirmative defenses of the defendants Tower Group, Inc., Tower Group Companies, and Mountain Valley Indemnity Company, or, in the alternative, for leave to amend the complaint to assert a cause of action for reformation of the subject insurance policy.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendants Tower Group, Inc., Tower Group Companies, and Mountain Valley

28 N.Y.S.3d 121

Indemnity Company which was, in effect, for summary judgment declaring that the defendants Tower Group, Inc., and Tower Group Companies are not obligated to defend and indemnify the plaintiff in the underlying action, and substituting therefor a provision granting that branch of the motion, (2) by deleting the provision thereof denying those branches of the plaintiff's cross motion which were for summary judgment declaring that the defendant Mountain Valley Indemnity Company is obligated to defend and indemnify it in the underlying action and dismissing the affirmative defenses of the defendants Tower Group, Inc., Tower Group Companies, and Mountain Valley Indemnity Company, and substituting therefor a provision granting those branches of the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment, inter alia, declaring that the defendant Mountain Valley Indemnity Company is obligated to defend and indemnify the plaintiff in the underlying action, and the defendants Tower Group, Inc., and Tower Group Companies are not obligated to defend and indemnify the plaintiff in the underlying action.

In 2008, Antonios Zevlakis allegedly was injured when he tripped and fell on a sidewalk outside a gas station operated by Noori Auto & Fuel, Inc. (hereinafter Noori), pursuant to franchise and lease agreements with Cumberland Farms, Inc. (hereinafter Cumberland). Noori had an insurance policy with Mountain Valley Indemnity Company (hereinafter Mountain Valley) that listed Cumberland as an additional insured. After the accident, Zevlakis commenced an action against Cumberland to recover damages for personal injuries (hereinafter the underlying action).

Cumberland then commenced this action, inter alia, for a judgment declaring that Mountain Valley, and its alleged affiliates, the defendants Tower Group, Inc., and Tower Group Companies (hereinafter together the Tower Group defendants), are obligated to defend and indemnify it in the underlying action. Mountain Valley and the Tower Group defendants (hereinafter collectively the defendants) moved, in effect, for summary judgment declaring that they are not so obligated. Cumberland cross-moved...