1515 Broadway Fee Owner LLC v Seneca Ins. Co., Inc.

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1515 Broadway Fee Owner LLC v Seneca Ins. Co., Inc. 2012 NY Slip Op 30407(U) February 22, 2012 Sup Ct, NY County Docket Number: 603461/08 Judge: Debra A. James 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 NEW YORK - NEW YORK COUNTY PART 59 DEBRA A. JAMES PRESENT: Justice Index No.: SL GREEN REALTY CORP., Plaintiffs, 60346 1/08 Motion Date: 1515 BROADWAY FEE OWNER LLC and 10/18/11 Motion Seq. No.: -vSENECA INSURANCE COMPANY, 02 Motion Cal. No.: INC., Defendant. The following papers, numbered 1 to 7 were read on this motion for reargument. I PAPER$ NUMBERED Notice of MotionlOrder to Show Cause -Affidavits -E Answering Affidavits - Exhibits Replying Affidavits - Exhibits 5 -7 Yes Cross-Motion: 0 No Upon the foregoing papers, NEW YORK COUNTY CLERKS OFFICE In this declaratory judgment action, plaintiffs move f o r leave to reargue a portion of the court s earlier decision, and defendant C I O S S - M ~ V ~ for B t h e same relief. For the following reasons both motions are denied, and the cross-motion is denied. Plaintiff 1515 Broadway Fee Owner LLC (1515 B F O ) , a foreign limited liability corporation licensed to do business in New York, is the owner of a building (the building) located at 1515 Broadway in the County, City and State of New York. Plaintiff SL Green Realty Corp. (SLG), also a foreign corporation licensed to do business in New York (and at whose premises 1515 BFO maintains Check One: 0 FINAL DISPOSITION Check if appropriate: 0 DO NOT POST NON-FINAL DISPOSITION 0 REFERENCE [* 2] its offices), has been described in this action as an affiliated entity of 1515 BFO, and as the building s landlord. Defendant Seneca Insurance Company, I n c . , (Seneca) is a New York State licensed insurance company. On December 10, 2006, non-party SLG employee Miguel Torres (Torres), who was injured at the building, commenced a personal injury/negligence action against 1515 BFO and SLG in the Supreme Court of the State of New York, Bronx County, under Index No. 302485/07 (the Torres action). 1515 BFO and SLG thereafter contacted Seneca to request that it provide them with a defense and indemnification in the Torres action, pursuant to the general commercia1 property and liability insurance policy that they had purchased from Seneca (the Seneca policy). However Seneca eventually declined to do so, Plaintiffs then commenced this action on November 25, 2008 by filing a complaint that sought a declaratory judgment that Seneca must defend and indemnify plaintiffs in the Torres action and sought damages from Seneca f o r breach of contract f o r failing to defend and indemnify plaintiffs pursuant to the Seneca policy. Seneca answered, and then moved for a declaration that the Seneca policy d i d not obligate it to either defend or indemnify plaintiffs in the Torres action, while plaintiffs cross-moved for a contrary declaration, for an additional declaration that Seneca s coverage was primary, and f o r a hearing to determine the amount of defense -2- [* 3] costs it had expended in t h e Torres action (collectively, motion sequence number 001) On February 25, 2011, this court entered a decision that resolved those motions by: 1) awarding plaintiffs a declaration that Seneca was obligated to provide them with a defense in the Torres action; 2) denied, as premature, both parties' requests f o r declaratory judgments on the issue of indemnification in the Torres action; and 3) declined to reach the issues of whether Seneca's coverage w a s primary or whether to hold a h e a r i n g on plaintiffs' accrued defense costs. On December 6, 2011, the Appellate Division, First Department, issued a decision that upheld those portions of this court's February 25, 2011 order that had declared Seneca obligated to defend plaintiffs in the Torres action and had declined to hold a defense costs hearing, and modified the remainder of that decision to enter declarations: 1) that Seneca is obligated to indemnify plaintiffs in the Torres action; and 2) that Seneca's coverage is primary. 1515 BrQadwav Fee Owner, LLC v Seneca Ins. Co., Inc., 90 AD3d 436 ( l s t Dept 2011). In t h e interim, however, plaintiffs had served the instant motion f o r leave to reargue the portions of t h e February 25, 2011 decision that had denied plaintiffs' previous applications for declaratory judgments on the issues of indemnification and primacy of coverage and declined to hold a hearing on defense costs; and -3- [* 4] Seneca had cross moved for leave to reargue that portion of the same decision that declared that it was obligated to defend plaintiffs in the Torres action (collectively, motion sequence number 002). Pursuant to CPLR 2221, a motion for leave to reargue may be granted only upon a showing "'that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision."' jV illiam P. Pahl Equip. Corn. v Kagsis, 182 AD2d 22, 27 ( l e Dept 1992), quoting Scbeidey v t Solowev, 141 AD2d 813 2d Dept 1988). "Reargument is not designed to afford t h e unsuccessful party successive opportunities to reargue issues previously decided." a.at 27, citing Pro Brokeraqe v Home Ins. Co,, 99 AD2d 971 (1st Dept 1984). Nor does a reargument motion provide a party '\'an opportunity to advance arguments different from those tendered on the original application."' Rubinstein v Goldman, 225 AD2d 3 2 8 , 328 ( I E t Dept 1996), quoting Foley v Roche, 68 AD2d 558, 568 (1st Dept 1979). Here, as will be discussed, the parties' competing motions for leave to reargue have been rendered largely moot by the First Department's December 6, 2011 decision. Nevertheless, several minor matters remain to be addressed. In their instant motion, plaintiffs request leave to reargue those portions of this court's February 25, 2011 decision that, they claim: 1) denied plaintiffs' application f o r a declaration -4- [* 5] \ that Seneca s coverage was primary; 2) overlooked plaintiffs application for a declaration on defense expenditures in the Torres action; 3) denied, as abandoned, plaintiffs application for a hearing on defense expenditures in the Torres action; 4 ) mistakenly referred to SLG as 1515 BFO s managing agent; 5 ) overlooked plainti ¬fs insured contract argument; and 6) overlooked plainti ¬fs waiver argument. Clearly, t h e first, fifth and sixth points are now moot, since the First Department s recent decision granted plaintiffs applications for declaratory judgments that Seneca is obligated to both defend and indemnify, and that Seneca s coverage is primary. Of The fourth point is also no moment since, as previously noted, both parties have agreed that the court s mistaken reference to SLG as 1 5 1 5 BFO s managing agent w a s a de minimis error. Plaintiffs two remaining applications for reargument center on its previous demand for a declaratory judgment and hearing on the amounts that they have heretofore expended in defending t h e Torres action. However, the First Department s decision specifically found that: Because plaintiffs failed to address why an immediate hearing was required to determine past defense costs pursuant to CPLR 3 2 1 2 ( c ) , the motion court did not improvidently exercise its discretion in declining to grant such a request. 1515 Broadwav Fee Owner, LLC v Seneca In$. C 0. Inc , 436. 9 0 AD3d at Therefore, it is plain that t h e First Department s decision renders plaintiffs arguments regarding defense expenditures moot -5- [* 6] as well. In any event, the court notes that plaintiffs current motion papers, too, are devoid of any argument as to why such an immediate hearing is required. Accordingly, the court finds that plaintiffs motion should be denied. In its cross-motion, Seneca seeks leave to reargue the portion of this court s February 25, 2011 decision that granted plaintiffs a declaratory judgment that Seneca was required t o defend plaintiffs in the Torres action. Seneca argues that the court misinterpreted the Additional I n s u r e d Endorsement by failing to look to the underlying lease agreement to determine t h e scope of coverage offered by the Seneca policy. Plaintiffs respond that Seneca raised this very same argument in t h e original summary judgment motion and, as such, that raising it again now in the context of a motion to reargue is improper. Plaintiffs are correct. As was previously noted, [rleargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided. William E). Pahl E m i p . Corp. v Kassis, 182 AD2d at 27 ( l s t Dept 1 9 9 2 ) . Further the First Department s December 6, 2011 decision included the following specific finding : issue is whether the stairwell area where the underlying accident occurred is covered by the additional insured clause in the policy procured by the underlying plaintiff s employer from Seneca. The clause extends coverage to plaintiffs herein, the employer s landlord and t h e managing agent of the building. Coverage exists because the underlying claim arose out of the maintenance or u s e of the leased premises, within the At -6- [* 7] occurred in the course of an activity necessarily incidental to the operation of the space leased by the employer. Furthermore, the accident happened in a part of t h e premises that was used f o r access in and out of the leased space when the freight elevator was not in service. This result is 'consistent with t h e lease, which required the employer to procure 'insurance against any liabilities "on or about the demised premises or any appurtenances thereto." Accordingly, a duty to defend has been triggered and we need not address plaintiffs' argument that the disclaimer was inadequate. 1515 Broadway Fee Owner, LLC v Seneca Ins. C Q , , 436 (internal citations omitted). Inc. I 90 AD3d at Thus, Seneca's argument is unsupportable in the context of the current croBs motion, and h a s also been rejected on a p p e a l . Accordingly, the court finds that Seneca's cross-motion should be denied. Accordingly, it is hereby ORDERED that the motion, pursuant to CPLR 2221, of plaintiffs 1515 Broadway Fee Owner LLC and SL Green Realty Corp. is denied; and it is further ORDERED that the cross-motion, pursuant: to CPLR 2221, of defendant Seneca Insurance Company, Inc. is denied; and it is further This is the decision and order of the court. Dated: February 2 2 , 2012 ENTER : -7- NEW YORK COUNTY CLERKS OFFICE

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