Hermitage Ins. Co. v Zaidman
2012 NY Slip Op 30852(U)
April 2, 2012
Sup Ct, NY County
Docket Number: 101241/2011
Judge: Doris Ling-Cohan
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
I N D M NO.
MOTION SEQ. NO.
The following papem, numbered 1 to
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Upon the foregolng paperg, It Is ordered that thls motion 1
1. CHECK ONE:
2. CHECK AS APPROPRIATE:
3. CHECK IF APPROPRIATE:
r CASE DISPOSED
0GRANTED 0DENIED 0GRANTED IN PART 0OTHER
0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE
HERMITAGE INSURANCE COMPANY,
INDEX NUMBER 101241/20 11
Motion Sequence 001
JUDGMENT & ORDER
SABINA ZAIDMAN, DCD MARKETING, LTD.
and GRACE ZAIDMAN,
DORIS LING-COHAN, J.:
Plaintiff Hermitage Insurance Company (Hermitage) moves, pursuant to CPLR 32 12, for
summary judgment in its favor on the complaint, declaring that it has no obligation to defend or
indemnify defendant Sabina Zaidman (Sabina), and for a default judgment as against defendant
DCD Marketing, LTD. (DCD), pursuant to CPLR 321 5 (a). Defendant Grace Zaidman (Grace),
Sabina’s daughter, opposes and cross-moves for summary judgment declaring that Hermitage is
obligated to defend and indemnify Sabina. Sabina opposes Hermitage’s motion and supports
Grace’s cross motion. DCD opposes Hermitage’s motion and cross-moves for leave to extend
its time to appear and answer the cornplaint, pursuant to CPLR 3012 (d).
On February 12, 2007, Grace allegedly was injured when she tripped and fell down steps
at 1235 East 69‘h Street, Brooklyn, New York (the Premises), owned by Sabina and Theodor
Zaidman (Theodor), Grace’s parents. On September 27, 2007, Grace commenced an action,
Grace Saidrnan v Sabina Zuidmnn and DC’D Marketing, LTD., Kings County Index No.
36154/2007 (the underlying action), alleging that she slipped on newspaper flyers left on the
steps of the Premises by DCD. Ex. A attached to Thomas Support Affirm. On June 9,2008, a
default judgment was issued against Sabina, because she failed to answer the complaint. Ex. C
attached to Davidovic Opp. Affirm.
On October 19, 2007, Hermitage, which insured the Premises, allegedly disclaimed
coverage of Grace’s claim. Ex. H attached to Thomas Support Affirm. However, on December
1,2010, over three (3) years after later, Hermitage (under the name of Tower Group Companies,
its new owner), sent a letter which, while reiterating its disclaimer, indicated that it would defend
Theodor and Sabina in the underlying action, “subject to resolution of a declaratory judgment
action that we will commence against you to confirm the propriety of our disclaimer.” Ex. D
attached to Davidovic Opp. Affirm. Hermitage commenced the instant action on February 1,
20 1 1, requesting a declaratory judgment that it has no duty to defend or indemnify any of the
defendants for claims made in the underlying action, on the ground of late notice. On March 16,
201 1, Sabina, represented by counsel retained by Hermitage, moved to vacate the default
judgment against her.
“The proponent of a motion for summary judgment must demonstrate that there are no
material issues of fact in dispute, and that it is entitled to judgment as a matter of law.” Dallus-
Stephenson v Wuisrnun, 39 AD3d 303, 306 (1” Dept 2007), citing Winegrad v New York Univ.
Med. Center, 64 NY2d 85 1, 853 (1 985). Upon proffer of evidence establishing a prima facie
case by the movant, “the party opposing a motion for summary judgment bears the burden of
‘produc[ing] evidentiary proof in admissible form sufficient to require a trial of material
questions of fact.”’ People v Grasso, 50 AD3d 535, 545 (1” Dept 2008), quoting Zuckerman v
Cily ufNew York, 49 NY2d 557,562 (1 980). Although summary judgment is considered to be a
drastic remedy, it should be granted where there are no disputed material issues of fact. Andre v.
Pomeroy, 35 NY2d 361 (1974).
“When a defendant has failed to appear, plead or proceed to trial of an action reached and
called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff
may seek a default judgment against him.” CPLR 321 5 (a). However, CPLR 3012 (d) pennits
the court to “extend the time to appear or plead, or compel the acceptance of a pleading untimely
served, upon such terms as may be just and upon a showing of reasonable excuse for delay or
default.” “It is within the court’s power to grant such an extension where it is established . . . that
the delay in service was not willful or lengthy and that it did not cause any prejudice to the
parties.” A & JConcrete Corp. v A r k ~ 54 NY2d 870, 872 (1981). Further, CPLR 2005,
expressly permits a court to excuse a delay or default, based upon a claim of “law office failure”.
At the time of the incident, the Premises were insured by Hermitage under policy number
HCP/523538-06 (the Policy). Ex. E attached to Thomas Support Affirm. Hermitage claims that
it first received notice of the incident on October 1,2007, by a “General Liability Notice of
Occurrence/Claim,” dated September 28, 2007, from an insurance broker. Ex. F attached to
Thomas Support Affirm. This notice was accompanied by a letter from Grace’s attorney to
Theodor and Sabina, dated September 7, 2007, concerning Grace’s ‘