Ramirez v Willow Ridge Country Club, Inc.

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Ramirez v Willow Ridge Country Club, Inc. 2006 NY Slip Op 30674(U) August 31, 2006 Supreme Court, New York County Docket Number: 122538/00 Judge: Barbara R. Kapnick Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF N E W YORF / BARBARA R. K w K A e PRESENT: d. ' - - N E W YORK I Index Number : 122538/2000 COUNTY PART I RAMIREZ, FELlClTO vs ' MOTION DATE WILLOW RIDGE COUNTRY CLUB I Sequence Number : 007 I MOTION SEQ. NO. I MOTION CAL. NO. DISMISS I I ne roiiowrng papers, numbered I to were rend on this motlon to/for PAPERS NUMBERED Notlce of Motlo"n/ Order to Show Cause - Affldavlts Answerlng Affidavlts Replylng Affidavlta - - Exhlbits .,. Exhlblte I( Cross-Motion: Upon the foregoing p aLvtdw MrnO#& - A MA m @ WITH mA?#X.R# , . , , , . , ' SEP 0 6 2406 Check one: 0 FINAL DISPOSITION Check if appropriate: , , , ' . , , , . , )IPNON-FINAL w$pOSITION 0 DONOTPOST . REFERENCE , , . [* 2] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK: PART 12 COUNTY OF FELICITO M I R E Z , Plaintiff, -against- DECISION/ORDER Index No. 122538/00 Motion Seq. Nos. 007 and 0 0 8 WILLOW RIDGE COUNTRY CLUB, INC. and E.W. HOWELL CO., TNC., Defendants. Third-party Plaintiffs, Third-party Index No. 5 9 0 7 7 4 / 0 1 -againstFALCON INDUSTRIES, INC. and ALAN FREEDTAN & ASSOCIATES, Third-party Defendants. -GoUNfi & & CLERK'S Q p F Motion Sequence Numbers 007 and 008 a-E-1 for disposition. This is an action pursuant to Labor Law §§ 2 4 0 ( 1 ) , 2 4 1 ( 6 ) and 200 and for common l a w negligence. Plaintiff Felicito R a r n i r e z , a laborer, seeks to recover damages for personal injuries he sustained on September 19, 2000, during the course of his employmenL with third-party defendant Falcon Industries, Inc. ("Falcon"),a demolition subcontractor. [* 3] Defendant/third-party plaintiff E.W. Howell Co., Inc. ("Howell")was the general contractor for the p r o j e c t . Defendantskhird-party plaintiffs Willow Ridge Country Club, Inc. ("Willow Ridge") and Howell have asserted claims against third-party defendant Falcon f o r contractual and common law indemnification, as well as for breach of its agreement to procure insurance naming them as 'additional insureds'. Defendants/third-party plaintiffs have also asserted claims against Falcon's insurance broker, Alan Freeman ("Freeman"), claiming that it failed to p r o c u r e & Associates the proper insurance naming them as 'additional insureds', and misrepresented in a Certificate of Insurance that they were, in fact, named as 'additional insureds'. Defendants/thiwd-party plaintiffs were apparently not specifically named in the general liability policy issued by Lexington Insurance Company to Falcon, which was, in any event, cancelled effective July 3 1 , 2000 based on Falcon's failure to pay its premiums. Third-party defendant Freeman now moves (under motion sequence number 007) for summary judgment dismissing any and all claims and cross-claims against it. 2 [* 4] Third-party defendant Falcon cross-moves for summary judgment dismissing the third-party complaint and all cross-claims against it. Defendants/third-party plaintiffs Willow Ridge and Howell move (under motion sequence number 008) for summary judgment on their third-party claims against Falcon. Third-party defendant Freeman argues that the third-party complaint against it must be dismissed on the grounds that: (1) there is no privity between third-party plaintiffs and Freeman; (2) under New York law, third-party plaintiffs may not rely on a certificate of insurance to support a claim against an insurance b r o k e r ; (3) third-party plaintiffs, who were covered under their own insurance policy, have not sustained any actual damages in this case; (4) Falcon's failure to pay its premiums f o r the policy at issue was a superseding cause of third-party plaintiffs' purported damages, and would have caused a lack of additional insured coverage regardless of any actions or inactions of Freeman; and (5) even if the general liability policy at issue was in force and third-party plaintiffs were named as additional i n s u r e d s , the policy would not provide coverage f o r the claims herein, because it excluded coverage for employees of the i n s u r e d (i.e., 3 [* 5] Defendants/third-party plaintiffs argue in opposition to this portion of the motion that t h e r e is a question of fact as to whether Freeman failed to procure the proper intentionally, willfully, negligently material misrepresentations that and/or Falcon insurance and carelessly procured the made proper insurance. They further claim that they may assert a claim against Freeman, because (a) a special relationship exited between Freeman and the third-party plaintiffs so as to approach that of privity; and (b) Freeman did not merely represent in the Certificate of Insurance that represented in they were numerous 'additional insureds' but oral statements to also so Howell. Defendants/third-party plaintiffs thus seek to recover the costs and disbursements of this action and any expenses incurred herein, including attorneys' fees, the premiums it paid for its own insurance, any out-of-pocket costs that may have been incurred incidental to the policy, and any increase in future insurance premiums resulting from the present liability claim. However, the Appellate Division, First Department held in Greater NPW York Mut. Ins. Co. v. White Kniql-t R estoration, Ltd., 7 A.D.3d 292, 293 (1st Dep't 2 0 0 4 1 , an action seeking, inter a l ia , damages for failure to procure coverage naming the p r o p e r t y owner and the contractor as additional insureds, and for producing certificates of insurance that incorrectly indicated they had been so named, that "summary judgment was properly granted to the 4 [* 6] subcontractor's insurance broker, . . . dismissing the claims for breach of contract and negligence, since the broker w a s under no duty to the property owner and contractor". The court further found that [rlegardless of whether the broker acted recklessly, the of action for fraud and negligent causes misrepresentation, based on the inaccurate certificates, w e r e properly dismissed because it was unreasonable to rely on them for coverage in t h e face of their disclaimer to the negligent language and, with respect misrepresentation claim, because of the absence of a relationship approximating privity (see B e n j a m i n S h a p i r o R e a l t y Co. v K e m p e r N a t l . Ins. C o s . , 3 0 3 AD2d 2 4 5 [ 2 0 0 3 ] , I v d e n i e d 100 NY2d 5 7 3 [ 2 0 0 3 ] ) . Greater New York Mut. Ins. Co. v . White Kniqht Restoration, Ltd., supra at 293. Accordingly, based on the papers submitted and the oral argument held on the r e c o r d on June 28, 2006, that portion of third-party defendant Freeman's motion seeking to dismiss the third-party complaint against it is granted. That portion of third-party defendant Freeman's motion,seeking to dismiss Falcon's cross-claims against it on the ground that any losses resulting from the cancellation of this policy a r e a direct result of Falcon's own failure to pay its premium is granted without opposition. That portion of t h e cross-motion third-party defendant Falcon seeking to dismiss the third-party claim for common law 5 [* 7] .. indemnification on the ground that it is barred by Workers' Compensation Law 5 11 is granted as there is no dispute that plaintiff did n o t sustain a 'grave injury'. That portion of the cross-motion seeking to dismiss the thirdparty claim for contractual indemnification on the ground that no valid contract existed between Howell and Falcon at the time of plaintiff's accident, and the motion by defendants/third-party plaintiffs for summary judgment on their third-party claim against third-party defendant Falcon for contractual indemnification and breach of contract for failure to procure insurance are denied, as this Court finds that there are issues of fact as to whether Howell and Falcon intended the Contract (and specifically, the indemnification and insurance procurement provisions) executed after plaintiff's accident, to be applied retroactively (see, Pena v. Chateau Woodmere Corp., 304 A.D.2d 4 4 2 [lst Dep't 20031, app. dism'd, 2 A.D.3d 1488 [lst Dep't 2 0 0 3 1 ; Stabile v. Viener, 291 A.D.2d 395 [2nd Dep't 20021, lv. dism'd, 98 N.Y.2d 727 [ Z O O Z J ) , including whether the Letter of Int 2000, four days prior to plaintiff's a specifically dealt with the and indemnification provisions. This constitutes the decision and order of this Court. 3/, Dated: August 2o06 J.S.C. 6

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