AXA Winterthur Ins. Co. v Transvalue, Inc.

 Annotate this Case
Download PDF
AXA Winterthur Ins. Co. v Transvalue, Inc. 2011 NY Slip Op 33968(U) December 23, 2011 Supreme Court, New York County Docket Number: 650507/2011 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/27/2011 1] INDEX NO. 650507/2011 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/27/2011 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 59 DEBRA A. JAMES PRESENT: Justice 6 Index No.: Plaintiff, 650507/2011 Motion Date: AXA WINTERTHUR INSURANCE CO., 12/20/11 Motion Seq." No.: _ _=0=0_,_1__ -v TRANSVALUE, INC and CERTAIN INTERESTED UNDERWRITERS at LLOYD'S, Defendants. Motion Cal. No.: _ _ _ __ 'fhe following papers, numbered to _ 4_ were read on this motion to dismiss ;1 PAPERS NUMBERED -n e z 0 w en 1 Notice of Motion -Affidavits -Exhibits 2, Answering Affidavits - Exhibits 3 4 Replying Affidavits - Exhibits u< _w I- c::: Cross-Motion: D Yes 18 No en C!> 0 3: Upon the foregoing papers, this motion to ·dismiss the c:::O c::: u. complaint for lack of personal jurisdiction over the defendants w I- is denied since this court has jurisdiction over defendant >- 0 ...J u. Transvalue, z ...,_ ::> I- 0 Cl ...J w ...J WW u. :I: C:: c:::: Inc pursuant to CPLR § 302 . ...J ::> u. t- u w a.. Neither party submits a copy of the complaint that < defendants seek to dismiss, so the court sua sponte considers the en w c::: en w en pleading on electronic file with the clerk. As argued by plaintiff herein, in its federal court <( u z 0 complaint in Transvalue v RCX, Inc, (US Dist Ct, SD, NY 10 Civ 0 FINAL DISPOSITION D NON-FINAL DISPOSITION j:: 0 :ii! Check One: Check if appropriate: D DO NOT POST 0 REFERENCE [* 2] is a domestic corporation doing business in the State of New York, with whom Transvalue subcontracted to move certain jewelry, which was ultimately stolen, York. fro~ JFK Airport to Mt. Vernon, New Such admission establishes that this New York court bas personal jurisdiction over Transvalue in this declaratory judgment action in which AY.A Winterthur Insurance Company, RXC Inc's insurer, seeks arr adjudication of its obligations under a policy that Transvalue alleges provided coverage in connection with the very transaction that was the subject of the New York federal court action in which Transvalue obtained a .default judgment against RCX, Inc. 1 The policy which defendant Transvalue attaches to its moving papers lists RCX Armored Inc at 62 West 47th Street, #1111, New York, New York 10036, which is the exact same address that it lists in correspondence dated February 5, 2007 on its own letterhead addressed to RCX, Inc, and defendant Transvalue does not deny that it sent such letter. Clearly there was no confusion as to the parties involved in the contract. Harmon v Ivy Walk, Inc, 48 AD3d 344, 347 (1st Dept 2008). Nor does the "Evidence of Itisurance" constitute irrefutable documentary evidence that RCX, Inc is not domiciled in New York since such document explicitly provides that it confers no rights 1 As a corollary, the New York federal court would have had personal jurisdiction over AXA Winterthur, RCX, Inc.'s insurer. Zacharakis v Bunker Hill Mut Ins Co, 281 AD 487 (1st Dept 1953). 2 [* 3] upon the holder other than those provided in the policy, which sets forth a New York £orum selection and choice of law provision. Moreover, dismissal is not warranted pursuant to CPLR 3211 (a) (4) since the action at bar was filed before the defendants filed their now pending action in the Florida federal ~' district court. Finally, in the interest of justice the court grants plaintiff leave and extends the 120 day period under which it shall effect service upon Lloyd's of London pursuant to CPLR § 306-b, for 120 days from service of this order with notice of entry. Accordingly, it is ORDERED that the motion of defendants to dismiss the complaint pursuant to CPLR 3211 (a) (1) (2) (4) (7) (8), and (10) is denied; and it is further ORDERED pursuant to CPLR 306-b that the time for plaintiff to effect service upon Lloyd's of London is extended for 120 days from service of a copy of this order with notice of entry; and it is further ORDERED that defendant shall serve an answer to the complaint within twenty (20) days after service of notice of entry; and it is further ORDERED that the parties shall appear for a preliminary 3 [* 4] conference in IAS Part 59, 71 Thomas Street, Room 103 on March 20, 2012, 9:30 AM. Dated:~--=D~e~c~e~m=b~e=r"----'2~3"'-'-'--=2~0~1=1'--- ENTER: pi 1p-... l ) ,i I 'h-"4 .... DEBRA A. JAMES 4 J.s.c.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.