Hilgreen v. Pollard Excavating, Inc.

• Decision Date: 23 November 2022
• Docket Number: 534185
• Parties: Matthew Hilgreen, Plaintiff, v. Pollard Excavating, Inc., et al., Defendants and Wendy Pollard, as Administrator of the Estate of John J. Pollard III, et al., Defendants and Third-Party Plaintiffs-Respondents Central Mutual Insurance Company, Third-Party Defendant-Appellant, et al., Third-Party Defendants.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 06669

Matthew Hilgreen, Plaintiff,
v.
Pollard Excavating, Inc., et al., Defendants

and Wendy Pollard, as Administrator of the Estate of John J. Pollard III, et al., Defendants and Third-Party Plaintiffs-Respondents Central Mutual Insurance Company, Third-Party Defendant-Appellant, et al., Third-Party Defendants.

No. 534185

Supreme Court of New York, Third Department

November 23, 2022

Calendar Date: October 19, 2022.

Rivkin Radler LLP, Uniondale (Michael C. Cannata of counsel), for third-party defendant-appellant.

E. Stewart Jones Hacker Murphy, LLP, Troy (Thomas J. Higgs of counsel), for third-party plaintiffs-respondents.

Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.

Egan Jr., J.P.

Appeal from an order of the Supreme Court (Christina L. Ryba, J.), entered September 15, 2021 in Albany County, which, among other things, denied a motion by third-party defendant Central Mutual Insurance Company to dismiss the third amended third-party complaint.

As set forth in our prior decision in this matter (193 A.D.3d 1134 [3d Dept 2021], appeal dismissed 37 N.Y.3d 1002 [2021]), plaintiff was purportedly injured in June 2016 when he fell on a staircase outside of his apartment on Main Street in the Village of Altamont, Albany County (hereinafter the subject property). In 2018, he commenced an action against John J. Pollard III and Clinda Pollard (hereinafter collectively referred to as the Pollards), the owners of the subject property, and defendant Pollard Excavating, Inc., a corporate entity owned and operated by the Pollards. He commenced a second action against a similar corporate entity, defendant Pollard Disposal Service, Inc., and the two actions were then consolidated pursuant to the parties' stipulation.

The Pollards unsuccessfully sought a defense and indemnification under multiple insurance policies, including, as is relevant here, one issued to Pollard Excavating that provided premises liability coverage for the subject property and that had been issued by third-party defendant Central Mutual Insurance Company. The Pollards thereafter commenced a third-party action against Central Mutual and others that sought, among other things, a declaration that they were entitled to coverage under the Central Mutual policy and a defense and indemnification in this case. The third-party complaint was subsequently amended to, in relevant part, advance claims for reformation of the Central Mutual policy due to mutual mistake and for declaratory relief. Supreme Court issued an order in 2019 that, among other things, denied Central Mutual's motion to dismiss the amended third-party complaint and granted the Pollards' cross motion for leave to serve a second amended third-party complaint. Supreme Court denied Central Mutual's motion to dismiss that pleading and directed it to serve an answer; upon appeal, this Court modified and granted the motion without prejudice (193 A.D.3d at 1137-1138).

Supreme Court thereafter issued an order in which it, among other things, granted the Pollards' motion for leave to file a third amended third-party complaint that sought reformation of the Central Mutual policy based upon mutual mistake, reformation based upon unilateral mistake coupled with fraud, and declaratory relief. The third amended third-party complaint also asserted claims alleging that Central Mutual should be estopped from denying the Pollards indemnification and a defense, as well as that the Pollards were entitled to damages for Central Mutual's breach of the covenant of good faith and fair dealing. Supreme Court then issued an order that, as is relevant here, denied Central Mutual's motion to dismiss that pleading. Central Mutual appeals. ^[1]

" On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a claim, [this Court] must afford the complaint a liberal construction, accept the facts as alleged in the pleading as true, confer on the nonmoving party the benefit of every possible inference and determine whether the facts as alleged fit within any cognizable legal theory" (Hilgreen v Pollard Excavating, Inc., 193 A.D.3d at 1136 [internal quotation marks and citations omitted]; see Matter of Mental Hygiene Legal Serv., Third Jud. Dept. v Delaney, 38 N.Y.3d 1076, 1091 [2022]; Singe v Bates Troy, Inc., 206 A.D.3d 1528, 1530 [3d Dept 2022]). In short, "if we determine that [the Pollards] are entitled to relief on any reasonable view of the facts stated, our inquiry is complete and we must declare the complaint legally sufficient" (Aristy-Farer v State of New York, 29 N.Y.3d 501, 509 [2017] [internal quotation marks, brackets and citation omitted]; see Doe v Bloomberg L.P., 36 N.Y.3d 450, 454 [2021])....