Central Park Studios, Inc. v Slosberg

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Central Park Studios, Inc. v Slosberg 2012 NY Slip Op 32094(U) June 5, 2012 Supreme Court, New York County Docket Number: 110490/2008 Judge: Paul G. Feinman 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 PRESENT: HON. PAUL G,FF~W PART 1 2 Justice -. Index Number : 1104Q0/2008 CENTRAL PARK STUDIOS vs. - INDW NO. YOTION DATE SLOSBERG, MICHAEL SEQUENCE NUMBER : 002 MOTION 5EQ. NO. SUMMARY JUDGMENT The following papen, numbomd 1 to - ,w m mad on thl8 motlon tonor Notlo of MotlodOrdsr to Show Caw@ AMdivtk An8wrrlng Atfldrvb - Exhlbb -Exhlblb I No(@). INO(#). INow* Rmptylnn Affldrvb Upon the foregolng papen, It Io ordelrd that thli motion k ; FILED A 6 08 a U 2 NEW YORK COUNTY CLERK'S OFFICE ,J.S.C. Datad: ..................................................................... 0CASE DISPOSED &"im 2. CHECK AS APPROPRIATE: ........................... MOTION 1 : aGRANTED 8 3. CHECK IF APPROPRIATE: ................................................ ORDER 1. CH@CKONE: 0DO NOT POST & m L DISPOSITION 3 owmD IN PART 0SUBMIT ORDER FlDUClM Y APPOlNfMENT I OTHER 0 REFERENCE [* 2] DECISION -against- PlalntlPPs --- (2 12) 683-9700 ctarbarini & Schcr, P.C. By: Bany Rothman, Esq. 432 Park Avo. So. . New York NY 10016 Havkins Rosanfeld R & Varriale, LLP i m By: Linda Fridagotto, Esq. 1065 AVC.of the Americas New YorkNY 10018 (212) 689-1113 Margaret 0. Klein & Associates By: Michaol J. White, Esq. 200 Madison Avo. New York NY 10016 (212) 488-1598 P Kcidel, Woldon & Cunningham, LLP By: JetRay A. Lussar, Esq. 925 Weatchester Avo., ste. 400 White Plains NY 10604 (914) 948-700 Ooodman & Jacobs, LLP By: Howard M.Wagner, Esq. Judith F. Goodman,Esq. 75 Broad St., 30" fl. New York NY 10004 Pollack Pollack Isaac~ DaCicco & By:Brian Isaacs, E8q. 225 Broadway, ate. 307 New York NY 10007 (212) 233-8100 (212) 385-1 191 allot c o - NawYorkNY 10118 (212) 9474999 Papers revlaw on there motions for summary and/or declaratory Judgment: &hmulJw Paoera Numbarsd Plaintiffs' Notlca of Motion for Summary Judgment agst. Pacific Indemnity, Em.A - U 1 2 Defendants Michael Slosbarg and Janet Cohn Slosberg's Aff, in Opposition 3 Defendant Dalos Insurance Co.9 Aff. 4 Defendant PacifIc Indemnity's Memorandum of Law i Opposition n 1 [* 3] Defendant Delos Insurance Co.'s Aff. In Response to Pacific lndsmnity Memorandum Plaintiffa' Reply Aff., Exs. A - K Transcript of Oral Argument MadQQaL - Plaintiffs' Noticc of Motion for Summary Judgment agst. Delos Ins., Exs. A P Defendant Delos Insurance Cos'sAff. in Opposition, Defendant DSA Builders, Inc.'s Aff. In Partial Oppoddon, Defendant Hagdorn & Company's Aff. in Support Defendant Pacific Indemnity Company's Aff, in Partial Support Plaiatiffs' Reply Aff. and Em, F A Transcript of Oral Argument - 5 6 7 1 2 3 4 5 6 7 Ms! ¬&au Dofendent Pacific Indemnity's Notice OF Motion for Summary Judgment, Aff. in Support, Exs. A - L, Memorandum of Law In Support Plalntlffs' Aff. in Opposition, Exs.A L Defendant Dolos Insurance Co.'s Aff. in Opposition Defendant Stew D y e r ' s Aff. in Opposition Defendant Pacific Indemnity's Partial Opp. to Dwyer Aff. Defendant Dolos Insurance Co.'s Aff. in Opp. To Dwyer Aff. Defendant Pacific Indemnity's Reply Mumorandum of Law Tmcript of Oral Argument - 1-3 4 5 6 .7 8 9 10 PAUL FEXNMAN, G. J.: In a declaratory judgment action, plaintiffs Central Park Studios, Inc. (CPS)and Gerard Picaso, Inc. (Picaso) move, pursuant to CPLR 3212, for summary judgment against defendant Pacific Indemnity Company (Pacific), declaring that Pacific is obligated to defend and indemnify them in an underlying action (motion seq. no. 002). CPS and Picaso, defendants in the r underlying action, which is captioned Steve Dwyer v Central Park Studios, Inc., Index No. 1 15086/06 (Sup Ct, NY County), move separately for summary judgment against Delos Insuran~ Company (Delos), formerly known as Sirius America Insurance Company (Sirius), declaring that Delos is obligated to defend and indemnify them in the underlying lawsuit (motion seq. no. 003). Finally, Pacific moves for summary judgment dismissing this declaratory judgment action as against it (motion saq. no, 004). 2 [* 4] I Background I The underlying action arose from an incident, on October 7,2005, in which Steve Dwyer @wyer), a carpenter, fell from a ladder while working at a cooperative building located at 15 Ws 67th Street in Manhattan. At the t h e , Dwycr was working for defendant DSA Builders et (DSA), CPS WEB the cooperative board, and Picaso was the building s managing agent. Defendants Michael Slosberg and Janet Cohn Slosberg (tho Slosbergs) owned the individual unit where Dwyer w s injured, and had hired DSA for a renovation project that would, among other a things, convert two units into one. On October 12,2006,Dwyer filed a complaint against CPS, Picaso, and the Slosbergs, alleging that defendants were liable to h m under Labor Law $§ 240 (1) and 241 (6), as well as i Labor Law 0 200 and common-law negligence. By a decision and order dated December 6,2010 (December2010 Order), another justice of this court dismissed all of Dwyer s claims against the Slosbcrgs and Picaso, and denied Dwyer s motion for partial summary judgment as to liability on his Labor Law $$240 (1) and 241 (6) claims. The December 2010 Order denied CPS s motion for summary judgment with respect to Dwyer s Labor Law 90 240 (1) and 241 (6) claims 8s against CPS, but granted CPS summary judgment dismissing Dwyer s Labor Law 8 200 and common-law negligence claims. The justice in the underlying action also denied a motion for summary judgment by intervenor American Home Assurance Company,DSA s insurer, to dismiss the Slosbcrgs common-law indemnification claims against DSA. Finally,the December 2010 Order granted Picaso and CPS summary judgment on their claims for contractual indemnification against the Slosbargs, but found that there remained an issue of fact BS to their contractual indemnification against DSA. 3 [* 5] On August 1,2008,CPS and Picaso filed a summons and complaint in this declaratory judgment action. In addition to a declaration that Pacific is obligated to defend and indemnify them,CPS and Picaso seek a declaration that Pacific s policy, wt a limit of $5,000,000, is ih primary. Pacific contends that CPS and Picaso are not covered under its policy. Likewise, CPS and Picaso seek f o Delos, in addition to the declaration of an obligation to defend and rm indemnify, a declaration that its policy w t a limit of $1,000,000is primary, and that its policy ih wt a limit of $3,000,000 is excess. Delos concedes that CPS and Picaso are insured under its ih policies, but disagrees with CPS and Picaso as to thuir relative primacy and the method of sharing.I Discussion Summary judgment must bc granted if the proponent makes 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, and the opponent fails to rebut that showing (Brun& B. v Eden Cent. School Dist., 15 NY3d 297,302 [2010], quoting Alvarez v Prospect Hosp., 68 - NY2d 320,324 [ 19861). However, if the moving party fails to make a prima facie showing, the court must deny the motion, regardlessof the suflciency of the opposingpapers (Smalls v AJI Indw., Inc., 10 NY3d 733, 735 [ZOOS], quoting Alvarez, 68 NY2d at 3 4 . 2) CPS and Picaso contend that they are additional insureds under the masterpieCe policy Dwyer submits m a h a t i o n seeking dismissal of plaintiffs claims as against him, but, as he has failed to fllo and stme a notice of motion or cross motion seeking afflnnativc relief, andor to pay the appropriate motion fee, and the court declines to addraaa his informal application. Sldlarly, in the absence of a motion or cross motion, the court declines to address DSA s auggestlon that It is entitled to dismissal. CPLR 22 11 . 4 [* 6] Pacific issued to the Slosbergs. However, since CPS and Picaso are not named as additional h u r c d s under Pacific s policy, the burden of proof is on them to raise an issue of fact as to whether they are entitled to coverage under Pacific s policy (see Sirius Am.Ins. Co. Y Burlington Ins. Co., 81 AD3d 562,563 [lst Dept 201 11). They fail to do so. Pacific s policy states that a covered person is, among other things, my other person .or organization wt respect to liability because of acts or omissions of you [the Slosbergs] or a ih Pcfc family member ( a i i Policy, policy no. 10479154-03, at T-1).CPS and Picaso argue that they are covered persons under the policy, BS the Slosbergs act of contracting with DSA to do renovation work caused any liability they may have in the underlying case. In pursuing this argument, CPS and Picaso rely on a line of cases that interprets arising out of language appearing in contractual indemnification provisions. These cases hold that, in this context, where a negligent act is not spccifically required by the policy language, courts should not read a ncgligenco requirement into the indemnification provision (see e.g. Sunlos v BREJswiss, LLC, 9 AD3d 303 [1st Dept 20041). All that is required for indemnification to bc triggered,where the provision relates to a construction contract, is a showing that a particular act or omission in the performance of [the] work was causally related to the accident (Urbfnav 26 C?. Assoc., LLC, 46 AD3d 268,273 [1s Dept 20071 [internal quotation m r s and citation S?. t ak omitted]). Pacific, conversely, contends that the covered person language in its policy requires a showing that the Slosbergs committed a negligent act or omission, which, the record makes clear, they have not. This argument relies on a misreading of Crespo v City o New f York (303 AD2d 166 [lst Dept 20031). Crespo involved additional insured language similar to that found in the 5 [* 7] subject Pacific policy (fd at 167), and the C u t held that the party seeking contractual or indemnification was not entitlud to indemnification: Inasmuch FIS it has not yet been determined whether plaintiffs harm was caused by negligence by [the party against whom indemnification was sought], and it remains possible that the trier of fact will find that plaintips harm was caused by negligence by [the party seeking indemnification], it cannot now be determined whether [the claim for indemnifaction] falls within the subject additional insured endorsement (fd.). Pacific contends that this language stands for the proposition that a negligence requirement should be read into additional insured language like the subject one, where additional insured status is extended to parties whose liability is created by because of acts or omissions of the insured party. In Crespo, however, the underlying claim sounded in negligence, thus,causation was intertwined with negligence, and when the Court discussed the triggering act, it referred to negligence (id. at 166-167). Crespo did not create the broad rule that ee Pacific urges. H r ,all negligence claims have been dismissed in the underlying case. Moreover, the additional insured language in Pacific s policy plainly does not require a negligent act or omission. However, Pacific s policy does require, in order to create an additional insured ih relationship wt an unnained third party, such as CPS and Picaso, that an act or omission of the Slosbergs had a direct causal relationship to the third party s liability, Whilc not requiring negligence, the policy s because of language requires a stronger causal link than the arising out of standard that CPS and Picaso urge the court to import (see e.g. Long Is. Light. Co. v Hurgord Acc. & Indem. Co., 76 Misc 2d 832,836[Sup C ,Nassau County 19731 [ there is a t 6 [* 8] more circumscribed meaning to because of than merely being a sequential link in the chain of events ]). Here, the Slosbergs act of contracting to have renovation work done, and agreeing to assume all responsibility for the Alterations (Alteration Agreement, fi 2), has too attenuated a connection to the underlying accident, and to CPS s potential liability to the underlying plaintiff. CPS and Picaso also argue that their liability w s caused by the Slosbergs failure to carry out a their obligations under paragraph three of the alteration agreement, w i h provides that: hc All work referred to herein shall be done in a good workmanlike manner and shall comply wt all rules and regulations. [The Slosbergs] shall obtain or cause ih [their] plumber, electrician or other contractor to obtain any permit or license which shall be necessary in connection with such work. If the Slosbergs had commissioned work done without proper permits and licenses, then they may have committed an omission that gives rise to an additional insured relationship under the Pacific policy. However, there is no allegation that the Slosbargs commissioned the work done without proper permits and licenses. What CPS and Picaso actually allege, that the Slosbergs failed in a general sense to ensure that the work was done in a good worlananlike manner, is too vague and insubstantial to establish a strong because of causal link between the Slosbergs conduct and CPS spotential liability. In the underlying action, it has already been found that Picaso has no liability. To the extent that CPS is ultimately found liable to Dwyer under Labor Law Q 9 240 (1) or 24 1 (6), it will not be vicariously liable for any conduct by the Slosbergs because the Slosbargs have not committed any act or omission that would implicate liability under either of those Labor Law provisions. As CPS and Picaso are not liable in the underlying action because of any conduct by 7 [* 9] the Slosbcrgs, CPS and Picaso are not entitled to additional insured status under Pacific s policy. While Pacific acknowledges that its policy covers the contractual indemnification that the Slosbergs owe to CPS and Picaso, this is an obligation Pacific owes to the Slosbergs, rather than to CPS and Picaso (see Boyk Y City o New York, 237 AD2d 230,231 [1st Dept 19971 [noting f that additional insured status is distinct f o contractual indemnity]). Moreover, the Pacific rm policy does not provide automatic additional insured coverage for parties indemnified under an insured contract (Yodu, LLC Y National Union Fire Ins. Co. of Pittsburgh, Pa., AD3d 506, 88 508 [lst Dept 201 1J, citing Kassis Y Ohio Cas, Ins. Co., 12 NY3d 595 [2009] [involving a tenant s insurance policy that provided automatic additional insured coverage to landlord through the lease ~greementJ). Thus, the fact that the Slosbergs owe contractual indemnification to CPS and Picasso does not confer additional insured status under the Pacific policy, - As CPS and Picaso are not additional insureds under the Pacific policy, Pacific smotion for s ~ m m a r y judgment dismissing all claims against it in this declaratory action is granted, while CPS and Picaso s motion for summary judgment against Pacific is denied, Dclos concedes that CPS and Picaso arc additional insureds under the policy its predecessor, defendant Sirius America Insurance Company (Sirius), issued to the contractor, DSA,and that CPS and Picaso are also additional insureds under the cxccss policy its predecessor issued to DSA. Thus,the branch of CPS and Picaso s motion that seeks a declaration that Delos is obligated to defend and indemnify t e in the underlying action is hm granted. CPS and Picaso additionally seck a declaration determining the order of priority, md the 8 , [* 10] method of sharing of the various insurance policies under which they are covcrcd. Specifically, CPS and Picaso contend that the policy Sirius issued under policy number RS104733,w t a ih limit of $1,000,000, is primary, and that the policy Sirius issued under policy number IXS201095,with a limit of $3,000,000, is excess, along with a policy issued by nonparty Insurance Company of Oreater New York (GNY) under policy number 6131M09472, with a limit of $1,000,000. As to the method of sharing FLS between the ONY policy and the excess Sirius policy, CPS and Picaso contend that the two policies should conkbutc by share, such that the QNY policy would pay at a ratio of 1 to 4 and the Sirius policy would pay at a ratio of 3 to 4. In order to determine the priority of coverage among different policies, a court must revicw and consider all of the relevant policies at issue (BPA. C.Corp. v One Beacon Ins. Group, 8 NY3d 708,716 [2007]). Here, the issues of priority of coverage and method of sharing cannot yet be determined, ONY is not a party to this action (see Id ;McLean v 405 Webster Ave. Assoc., 28 Misc 3d 1219[A], *23,2010 NY Slip Op 51396wl [Sup Ct, Kings County 20101). Conclusion Settle order and judgment: (1) Denying the motion of plaintiffs Central Park Studios, Inc. and Gerard J. Picaso, Inc. for summary judgment on their first cause of action seeking a declaration that defendant Pacific Indemnity Company is obliged to provide a defense to, and provide coverage for, said plaintiffs in the action of Steve Dwyer v Central Park Studios, Inc., Index No. 115086106 (Sup Ct, NY County)(mot. 002); and seq. (2) Oranting the branch of plaintiffs Central Park Studios, Inc. and Gerard J. Picaso, 9 [* 11] Inc. s summary judgment motion sccking a declaration that defendant Delos Insurance Company is obliged to provide a defense to, and provide coverage for, said plaintiffs in the action of Steve h y e r v C e n m l Park Studios, Inc., Index No. 115086/06 (Sup Ct, NY County)(mot. seq. 003), wt costs and disbursements to said defendant; ih (3) Declaring that defendant Delos InsuranceCompany is obliged to provide a defense to, and provide coverage for, Central Park Studios, Inc.and Gerard J. Picaso, hc. in the said action pending in Supreme Court, New York County; (4) Denying without prejudice the branch of plaintiffs Central Park Studios, h . c and Gerard J. Picaso, Inc. s summary judgment motion seeking determinations as to priority of coverage and method of sharing between the insurance policies covering them;and ( 5 ) Granting the motion of defendant Pacific Indemnity Company for summary judgment, dismissing this declaratoryjudgment action as against it (mot. seq. 004), wt costs and ih disbursements to said defendant. This is the decision of the court. Dated: June 5,2012 J.S.C. FILED NEW YORK TrYJNTY CLERK S OFFICE 2012 Pt 12 D&0~110490~2008~002~003~004~LD~E 10

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