Nationwide Gen. Ins. Co. v. Campos
| Decision Date | 22 June 2021 |
| Docket Number | 003 MotD,Mot. Seq. Nos. 002 MotD,Index No. 616645/2019 |
| Citation | 2021 NY Slip Op 33430 (U) |
| Parties | NATIONWIDE GENERAL INSURANCE COMPANY, Plaintiff, v. CARLOS CAMPOS, RINA CAMPOS, FRANCISCO A. LIEVANO-RIVERA and CATCO ASSOCIATES, LP, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
MOTION DATE 8/6/20 (002)
MOTION DATE 12/1/20(003)
ADJ. DATE 12/18/20
MILBER MAKRJS PLOUSADIS & SEIDE . LLP Attorneys for Plaintiff
LAW OFFICES OF CHRISTOPHER J. CASSAR P.C. Attorney for Defendants Carlos Campos and Rina Campos
MARSHALL DENNEHEY WARNER COLEMA & GOGGIN Attorneys for Defendant Catco Assoc., L.P.
Upon the following papers read on this motion for summary judgment and cross motion for leave to amend, etc.: Notice of Motion/Order to Show Cause and supporting papers by plaintiff, dated July 6, 2020 (including Memorandum of Law) Notice of Cross Motion and supporting papers by defendants Campos, dated November 13, 2020; Answering Affidavits and supporting papers by defendant Campos, filed November 13 2020, by defendant Lievano-Rivera, dated November 12, 2020 and by defendant Catco Associates, dated September 14, 2020 (including Memorandum of Law); and Replying Affidavits and supporting papers by plaintiff, dated December 11, 2020 (including Memorandum of Law); it is
ORDERED that the motion by plaintiff for, inter alia, an order granting summary judgment in its favor is granted in part and denied in part; and it is further ORDERED that the cross motion by defendants Carlos Campos and Rina Campos for, inter alia, an order extending their time to serve an answer is granted in part and denied in part.
The within action seeks a declaratory judgment that plaintiff has no duty to defend or indemnify defendants Carlos Campos, Rina Campos or Catco Associates, L.P, in a case filed against them by Francisco A. Lievano-Rivera ("Lievano-Rivera'"), in Supreme Court, Nassau County under index number 614958/2018 ("underlying action"), and that it has no duty to provide coverage to Lievano-Rivera. In the underlying action, Lievano-Rivera alleges that he was injured by exposure to carbon monoxide gas while living as a tenant in a basement apartment at a residence owned by defendant Catco Associates, L.P. Plaintiff had issued a tenant's policy of insurance to Carlos Campos and Rina Campos (collectively, "Campos defendants"), who had rented the house at issue. In an examination under oath conducted by plaintiff in the course of its claims investigation, Carlos Campos testified that he rented the house from a realty company, that he was unfamiliar with Catco Associates, and that he believed the realty company was responsible for the boiler, as it regularly came and inspected the smoke and carbon monoxide detectors. He further testified that while living in the house with his family he did rent rooms to tenants, but that Lievano-Rivera was not a tenant; rather, he was a coworker who needed a place to stay for a short period who did not pay rent or have his own room. Plaintiff asserts that the policy of insurance excludes coverage for injuries arising out of business activities or rental of the premises, and that defendants violated the policy by failing to provide notice of the incident and by misrepresenting the number of people living at the premises. At the time of filing of the within motion, issue was joined only as to Catco Associates.
Plaintiff now moves for an order granting it summary judgment as against all defendants. Alternatively, it seeks an order granting summary judgment against Catco Associates and leave to enter a default judgment against the remaining defendants.
Subsequent to the filing of the within motion, Lievano-Rivera filed an answer and plaintiff withdrew the portion of its motion which sought a default judgment against him. The Campos defendants filed a cross motion for an order granting leave to serve an answer, compelling plaintiff to accept such answer, and awarding them costs and attorneys' fees. In response, plaintiff withdrew the portion of its motion seeking a default judgment against the Campos defendants.
CPLR 3212 provides that a summary judgment motion may be brought after issue has been joined (Shaibani v Soraya, 71 A.D.3d 1121, 898 N.Y.S.2d 72 [2d Dept 2010]). "A motion for summary judgment may not be made before issue is joined (CPLR 3212 [a]) and the requirement is strictly adhered to" (City of Rochester v Chiarella, 65 N.Y.2d 92, 101, 490 N.Y.S.2d 174 [ 1985]; see also Cremosa Food Co., LLC v Amelia, 164 A.D.3d 1300, 81 N.Y.S.3d 749 [2d Dept 2018]; Lindbergh v SHLO 54, LLC, 128 A.D.3d 642, 9 N.Y.S.3d 105 [2d Dept 2015]; Gaskin v Harris, 98 A.D.3d9 41, 950 N.Y.S.2d 751 [2d Dept 2012]). Joinderof issue requires service of a complaint by the plaintiff and service of an answer or counterclaim by the defendant (Shaibani v Soraya, supra). Plaintiffs motion was filed prior to issue being joined as to the Campos defendants and Lievano-Rivera; therefore, its application for summary judgment as against those defendants is denied as procedurally improper. However, issue was joined with respect to Catco Associates prior to filing of the motion.
A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 [1986]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 [1985]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see O'Brien v Port Auth. of N.Y.& N.J., 29 N.Y.3d 27, 52 N.Y.S.3d 68 [2017]). The opposing party must ''produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Stonehill Capital Mgmt., LLC v Bank of the West, 28 N.Y.3d 439, 448, 45 N.Y.S.3d 864 [2016], quoting Alvarez v Prospect Hosp., supra). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]). On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (S.J. Capelin Assoc, v Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept 1990]). If the issue claimed to exist is not genuine but is feigned or speculative and there is nothing to be tried, then summary judgment should be granted (Prunty v Keltie 's Bum Steer, supra, citing Glick & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93 [1968]; O'Brien v Port Auth. of N.Y. & N.J., 29 N.Y.3d 27, 52 N.Y.S.3d 68 [2017]; Columbus Trust Co. v Campolo, 110 A.D.2d 616, 487N.Y.S.2d 105 [2d Dept], qffd 66 N.Y.2d 701, 496 N.Y.S.2d 425 [1985]). Pursuant to CPLR 3212 (f), summary judgment may be precluded under circumstances where discovery is incomplete; however, the discovery sought must be more than a fishing expedition. It may not be predicated upon speculative hope that evidence supporting a theory may be uncovered (Price v County of Suffolk, 303 A.D.2d 571, 756 N.Y.S.2d 758 [2d Dept 2003]; Greenberg v McLaughlin, 242 A.D.2d 603, 604, 662 N.Y.S.2d 100, 101 [2d Dept 1997]; Zarzona v City of New York, 208 A.D.2d 920, 920, 617 N.Y.S.2d 534, 535 [2d Dept 1994]). A mere hope that further discovery will uncover some helpful fact is insufficient to deny summary judgment as premature; there must be a real basis for the assertion that such discovery is necessary (Price v County of Suffolk, supra; Greenberg v McLaughlin, supra; Zarzona v City of New York, supra).
Plaintiff argues that defendants are not entitled to coverage for losses arising out of the February 17, 2017 incident which is the subject of the underlying action, as renters resided at the premises, Lievano-Rivera had been boarding at the premises, and it did not receive notice of the claim until January 22, 2019, when counsel for Catco Associates notified it that a lawsuit had been commenced. Plaintiff issued a reservation of rights letter to the Campos defendants dated May 8, 2019, followed by similar correspondence dated June 5 2019, and finally a letter dated August 7, 2019, which denied the obligation to provide coverage based upon cited policy exclusions and alleged violation of policy provisions. The August correspondence stated that a courtesy interim defense would be provided, but that if a court determined that plaintiff had no duty, such defense would be discontinued and no indemnification would be provided. Some of the provisions cited by plaintiff in support of its no coverage position are located in the "Liability Exclusions" section of the policy and exclude coverage for injury "arising out of business pursuits of an insured" or injury "arising out of the rental or holding for rental of any part of any premises by an insured" except where such rental is "part of [an insured's] residence premises ... unless...
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