Kamerer v. Angel O. Turcios & Allstate Ins. Co.
| Decision Date | 01 August 2016 |
| Docket Number | Index No. 677/15 |
| Citation | 2016 NY Slip Op 32835 (U) |
| Parties | LAUREN R. KAMERER and ROBIN R. KAMERER, Plaintiffs, v. ANGEL O. TURCIOS and ALLSTATE INSURANCE COMPANY, Defendants. |
| Court | New York Supreme Court |
2016 NY Slip Op 32835(U)
LAUREN R. KAMERER and ROBIN R. KAMERER, Plaintiffs,
v.
ANGEL O. TURCIOS and ALLSTATE INSURANCE COMPANY, Defendants.
Index No. 677/15
SUPREME COURT-STATE OF NEW YORK IAS PART-ORANGE COUNTY
August 1, 2016
ORIGINAL
Present: HON. ROBERT A. ONOFRY, A.J.S.C.
To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
DECISION AND ORDER
Motion Dates: June 15, 2016, and July 13, 2016
The following papers numbered 1 to 6 were read and considered on: (1) a motion by the Defendant Allstate Insurance Company, pursuant to CPLR §3211(a)(1) & (7), to dismiss the complaint based on documentary evidence and for failure to state a cause of action, and pursuant to CPLR §327 on the ground of forum non conveniens; and (2) a cross motion by the Plaintiff, pursuant to CPLR §3025(b), to amend the complaint to add a party.
Notice of Motion- Victor Affirmation- Exhibits A-D ........................................................... 1-3
Notice of Cross Motion- Cambareri Affirmation- Exhibits 1-6 ............................................ 4-6
Upon the foregoing papers, it is hereby,
ORDERED, that Defendant's motion is denied; and it is further,
ORDERED, that Plaintiff's cross motion is granted.
The Plaintiffs Lauren R. Kamerer and Robin R, Kamerer were allegedly injured in a motor vehicle accident involving the Defendant Angel O.Turcios. According to the police report, Turcios
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admitted that he fell asleep at the wheel of his vehicle before hitting a guard rail and swerving into the Plaintiff's lane of travel.
Originally, the Plaintiffs commenced this action against Turcios alone to recover damages for personal injuries.
However, the Plaintiffs then served a supplemental summons and amended verified complaint adding Allstate Insurance Company (hereinafter "Allstate") as a defendant.
The Plaintiffs allege that Allstate issued an automobile insurance policy (# 9-39-050490 03/04) to Robin Kamerer and Edward Kamerer, that the policy was in effect at the time of the subject accident, and that the policy provided coverage for both Plaintiffs for the accident. Further, they alleged, they were entitled to underinsured motorist benefits thereunder because Turcios was underinsured. The Plaintiffs allege that Allstate breached the policy, and the covenant of good faith and fair dealing implicit therein, by failing to pay such benefits, despite due demand.
Rather than answering, Allstate makes the motion at bar to dismiss the amended complaint as against it.
In so moving, Allstate argues that the policy identified by the Plaintiffs was not issued by Allstate, but was issued by Allstate New Jersey Insurance Company (hereinafter ANJIC"). Further, it asserts, ANJIC is not an alter ego of Allstate.
In any event, Allstate argues, the policy at issue has a forum selection clause that places venue in New Jersey. Thus, Allstate asserts, the clause should be enforced and the action removed to New Jersey.
Moreover, Allstate argues, venue should be removed to New Jersey because New York is not a convenient forum, to wit: The policy at issue is a New Jersey policy, was issued in New Jersey, and
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the parties are all New Jersey residents.
Appended as exhibits to Allstate's motion papers are, inter alia:
(1) The police report of the accident.
(2) A certified copy of the ANJIC policy. Pursuant to Policy Endorsement ANJ42-8, section I, subsection J: venue is to be in the courts of New Jersey. However, if the occurrence giving rise to a claim "happens outside of New Jersey," the lawsuit may be brought in the judicial district where the occurrence happened.
The Plaintiffs cross move to amend their complaint to add ANJIC as a defendant.
The Plaintiffs note that they settled the action as against Turcios for the full amount of his policy ($25,000.00), Here, they note, their policy provides supplementary underinsured motorist ("SUM") benefits in the amount of $250,000.00 per person, and $500,000.00 per accident.
Concerning Allstate's motion, the Plaintiffs note that Allstate did not submit competent evidence in admissible form in support of its contention that Allstate and ANJIC are two separate and distinct entities. Rather, it submitted only the conclusory and hearsay contentions of its attorney.
Further, they note, the forum selection clause of the policy expressly allows a lawsuit, as here, in the jurisdiction in which the accident occurred. Thus, the clause does not support removal of the case to New Jersey.
Finally, they argue, New York is not an inconvenient forum, as the accident occurred here.
CPLR §3211(a)(1) provides, in relevant part, that a party may move for dismissal of any one or more causes of action based upon the existence of documentary evidence. Dismissal upon such grounds, however, is only warranted where the documentary...
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