Tower Inc. Co. of N.Y. v Carranza

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Tower Inc. Co. of N.Y. v Carranza 2012 NY Slip Op 32668(U) September 27, 2012 Sup Ct, NY County Docket Number: 653233/2011 Judge: Lucy Billings 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] , f SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY LUCY BILLINGS 1 % c. PRESENT: PART Justice index Number : 10106412009 TOWER INSURANCE COMPANY vs. CARRANZA, MARIA SEQUENCE NUMBER : 003 MOTION SEQ. NO. DISMISS The following papers, numbered I to 3 , were read on this motion to/fpf h d 4 S Sh4WS - Exhibits Answering Affidavits INO(S)" INo(s). - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ............. .MOTION IS: ................................................ 1 (NO($). Notice of MotionlOrder to Show Cause -Affidavits 23 ; 0 CASE DISPOSED GRANTED ~ENIED SETTLE ORDER 0DO NOT POST 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _- -X - _ - - _ - - - - __ TOWER INSUFLANCE COMPANY OF NEW YORK, Index No. 653233/2011 Plaintiff 6 k064) DECISI N - against - MARIA CARRANZA, JOSE ROMERO, TOWN OF ISLIP, and MELVA OTERO, " . ..,__... ~ n .A LUCY BILLINGS, J . S . C . : Insofar as the motion by defendants Carranza and Romero to dismiss t h e complaint against them in t h i s consolidated action i s based on plaintiff's failure to state a claim, t h e court denies the motion. ,Defendants rely not just on the complaint or undisputed documents, but rely primarily on t h e i r affidavits, which the court may not consider i n the context of a motion on those grounds' as the affidavits simply dispute the facts alleged against defendants. C.P.L.R. 5 3211(a) (1) and (7); Lawrence v. Graubard Miller, 11 N . Y . 3 d 5 8 8 , 595 (2008); Eoshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994); Yoshiharu Iqarashi v. Shohaku Hisashi, 289 A.D.2d 128 (1st Dep't 2001). N.A., See GreenaDple v . C a p i t a l One, 9 2 A.D.3d 548, 550 (1st Dep't 2012); McCully v. Jersey Partners, Inc., 60 A.D.3d 562 (1st Dep't 2009); Zanett Lombardier, Ltd. v. Maslow, 29 A . D . 3 d 495 (1st Dep't 2006). As to plaintiff's first claim and ground for its disclaimer of insurance coverage, that the insured premises' owner did not towerins.142 1 [* 3] reside at the premises, defendants' defense relies on the affidavits of Carranza and Romero that they were co-owners and both resided there. As to plaintiff's second claim and ground for its disclaimer, that the injury for which coverage is claimed arose from the insured's business pursuits, an excluded injury, defendants' defense relies again on the affidavits of Carranza and Romero that they both resided at the insured premises and on Carranza's unsworn statement that she received no income from other occupants. Carranza and Romero do not attest that they engaged in no commercial pursuits at the premises, which in turn may have imposed liability on the owners for an unsafe abutting sidewalk condition that defendant Otero claims injured her. As to plaintiff's third claim and ground for its disclaimer, that defendants' notice to plaintiff of Otero's claim was late, defendants' defense relies on Romero's affidavit that he notified plaintiff's agent the day after R o m e r o and Carranza learned of Otero's claim. The defense that plaintiff has not shown prejudice from the late notice does not apply to the policy under which defendants claim coverage, because plaintiff issued the policy before the amendments to New York Tnsurance Law § 3420 (a)(5) and ( c ) (2) became effective, allowing that defense. 25 Ave. C New Realty, LLC v. Alea N. Am. Ins. Co., 96 A.D.3d 489, 491 (1st Dep't 2012); Tower Ins. Co. of N.Y. v. Classon Hqts., LLC - 1 82 A.D.3d 632, 635 (1st Dep't 2 0 1 1 ) ; Ponok Realty Corp. v. United Nat. Specialty Ins. 2010). Co., 69 A.D.3d 596, 597 (2d Dep't As to plaintiff's fourth claim and ground for its towerins.142 2 [* 4] disclaimer, that Carranza misrepresented the insured premises to be occupied by their owner, defendants' defense again relies on the affidavits of Carranza and Romero t h a t they were co-owners and both resided at the premises. The defense that the policy's one year limitations period b a r s plaintiff's action, C.P.L.R. 5 3211(a) ( 5 1 , relies on a policy provision that applies o n l y to actions by the insured and thus not to this action by the insurer. The defense that another action alleging the same claims against Carranza and Romero is pending, C . P . L . R . § 3211(a)(4), refers to an action that is no longer pending against Carranza and Romero and now has been consolidated with this action. Since the first action already had been dismissed against them and otherwise consolidated with this action when they served this motion, this action is not subject to dismissal on the ground that another action is pending. L . L-3 Communications Corp. d; A.D.3d 1, 7-8 (1st Dep't 2007). v. SafeNet, Inc., 45 Chanq v . Zapson, 67 A.D.3d 435, 436 (1st Dep't 2009); Counsel Abstract, I n c . Defined Benefit Pension Plan v . Jerome Auto Ctr., Inc., 23 A.D.3d 274, 276 (1st Dep't 2005). Finally, the dismissal of plaintiff's claims against Carranza and Romero in that prior action was not based on its merits, but was based on plaintiff's Lack of excuse for failing to move f o r a default judgment against these t w o non-answering defendants within one year after their default. C.P.L.R. § 3215(c); Brown v. Andreoli, 81 A.D.3d 498 (1st Dep't 2001); towerins.142 3 [* 5] County of Nassau v. Chmela, 45 A.D.3d 722 (2d Dep't 2007). Therefore that dismissal i s of no preclusive effect. LaRossa, Mitchell & Landau v. ROSS, 11 N.Y.3d 8, 13 (2008); Kalisch v. Maple Trade F i n . Corp., 35 A.D.3d 291 (1st Dep't 2006); Espinoza v. Concordia Intl. Forwardins COTP., 32 A.D.3d 326, 328 (1st Dep't 2006). See C.P.L.R. § 3211(a) ( 5 ) . Consequently, the court denies the motion by defendants Carranza and Romero to dismiss the complaint against t h e m on each of the grounds set forth. C.P.L.R. (7). § 3211(a) (11, ( 4 1 , (S), Until these defendants answer the complaint, C.P.L.R. and § 3211 (f), plaintiff's cross-motion f o r summary judgment against Carranza and Romero is premature and therefore denied. C.P.L.R. § 3212(a); City of Rochester v . Chiarella, 65 N.Y.3d 92, 1 0 1 (1985); Drezin v. New Yankee Stadium Community Benefits Fund, Inc., 94 A.D.3d 542, 543 (1st Dep't 2012); Manhattan Real Estate Equities Group LLC v. Pine Equity NY, Inc., Dep't 2006); 2009). 27 A.D.3d 323 ( 1 s t Alexandru v. Pappas, 68 A.D.3d 690, 691 (2d Dep't See Stephanie R. Cooper, P.C. v. Robert, 78 A . D . 3 d 572, 573 (1st Dep't 2010). This decision constitutes the court's order. mail copies to the parti I 4 T h e court will

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