American Intl. Specialty v Kagor Realty Co., LLC

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American Intl. Specialty v Kagor Realty Co., LLC 2012 NY Slip Op 33089(U) December 24, 2012 Supreme Court, New York County Docket Number: 102154/11 Judge: Richard F. Braun 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. file:///F|/ecourts/Process/covers/back/3001021542011001SCIV.html[01/09/2013 10:30:28 AM] SCANNED ON 11412013 --* SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ' Index Number: 102154/2011 AMERICAN INT'L SPECIALTY vs KAGOR REALTY co. LLC,\(I/ - " Sequence Number : 001 I SUMMARY JUDGMENT t 1LE JAN 0 5 701'5 - 1 . ~ 3. I ..................................................................... L CASE DISPOSED UDENIED CHECK AS APPROPRIATE: ........................... MOTION IS: r G D CHECK IF APPROPRIATE: ................................................ SETTLE ORDER 1. CHECK ONE: 2. INDEX NO. I- 0DO NOT POST MOTION DATE 1 MOTION SEQ. NO. NON-FINAL DISPOSITION IN PART 0OTHER SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE SUPREME COURT OF THE STATE OF NEW YOKK COUNTY OF NEW YORK: JAS PART 23 - - - _ _ - - - 1 - " - - - - - - 1 1 - _ _ _ _ _ _ _ _ _ _ _ _ r r - I - - - - - - - - - - - - - - - - - - X - AMERICAN INTERNATIONAL SPECIALTY I,INES INSURANCE COMPANY, Index No. 102154/11 Plaintiff, OPINION V. KAGOR REALTY CO. LLC, DAVID RODMGUEZ, an infant by his mother and natural guardian MILAGROS RODRJGULZ, and MILAGROS RODRIGUEZ individually, LESLIE KAUFMAN, DEENA WEINTRAUR, STEPHEN WEINTRAUB, JOE i TNOKSI, STAR INSURANCE CORPORATION j and the SUPHRTNTENDENI' OF INSURANCE i a of the STATE OF NEW Y O N an liquidator of U S . CAPITAL INSURANCE COMPANY 1 I 1 FILED , I r JAN 1332013 -.. RICHARD BRAUN, F, J.: This is a declaratory judgment action for a declaration that plaintiff American International Specialty Lines Iiisurance Company (AIS1,IC) is not obligated to provide a defense or pay for any loss on behalf of defendants Kagor Realty Co. LLC (Kagor), Leslie Kaufinan, Dccna Weintraub, Stephen Weintraub, and Joc T,ivorsi (the live Kagor defendants) in connection with the claims in the underlying action, Rodriguez 11 K q o r Redly C'o. (Sup Ct, Bronx County, index No. 16840/05) (thc Rodriguez action), and that neither defendants Star Insurance Corporation (Star) nor U.S. Capital Iiisurancc Company is cntitled to indemnification or contribution iron1 plaintiffAISL1C for any sums paid in the Rodriguez action. Plaintiff moves for suiiiniaryjudgment declaring that plainti ff'AISLIC has no duly to defend or pay for any loss on behalf of its insureds, thc fivc Kagor defendants in the 1 . . .. . .. . . . -. __ . - Rodriguez action. Defendant Star crossmoves for summary judgment declaring that plaintiff AISLTC has a duty to defend and pay for any loss on behalf of its insureds, the five Kagor delkndaiits, and that plaintiff AISJdC' is not permitted to withdraw from the clefense ofthe five Kagor defkndants in the Rodrigzrez action; or, alternatively, dcfendant Star requests a Gilding of material issues of fact precluding summary judginciit to plaintiff AISLTC, andlor the denial of plaintiff' AISLIC's summary judgmcnt for failure to make a prima facie showing ol'entitleinent to suinn~ary judgment. Hy order, dated July 15, 2012, that last mentioned branch of'dcfendaiit Star's cross motion was denied as unnecessary (Sdlivan u 40 West 53"' Partnership, NYLJ, Oct. 16, 2000, at 27, col 2 [Sup Ct, NY County]), with $25 motion costs awarded to plaintiff AISLIC against defendant Star. 1hc allegation in thc Rodriguez action was that defendant David Rodriguez, an infant, was * > injured as a result of'ingcsting lead f?om November 1992 to March 2001. Dei'endant Kagor was the owner ofthe subjcct premises iiom February 1996 to March 200 I . Dcfendant Star i tisitred defkndanl Kagor for the period from March 9, 1995 to March 9, 1996. Defendant U.S. Capital Insurance Company insured defendant Kagor from March 9, 1996 to June 9, 1996. Plaintiff AISLIC issued apolicy for the period from December 2003 to December 2OO8 (AISLIC policy). The AISLIC policy providcs a retroactive date and statcs "the Pollution Conditions must commence on or after the date shown below." The retroactive date specified is JLIW9, 1996. In hcr deposition, defendant Milagros Rodriguez, the mother of defendant David Rodriguez, testified that David RodrigueL was eating pain1 chips from November 1 993 through Novcmber 1994 or November 1995. 'I'he h t tinic Milagros Rodrigucz complained about the pecling paint condition to the supcrintendcnl of the sub+jcctbiiilding was some time between August 1993 arid November 1993. 2 A party moving lor suniiiiary judgment must dctnonstrale his, her, or its cntitlernent thcreto as a matter oflaw, pursuant to C PLR 3212 (b) (SmcrllsvAJlfndzrs., Inin., 10 N Y 3 d 733,735 [2008]; Melenu oz v l au.kchc,s~~r Med S ~ r v s . P. Cy. 76 A113cl 927 I I k p t 20 101). 1 0 defeat suniniary , , judgment, thc party opposing the motion must show that tlicrc is a material qucstion(s) of fact that requires a trial (Orphnn 17 Pilnik, 15 NY3d 907, 908 [2010]; Zinckr~rnwnv C ily of N w Y w k , 49 NY2d 557, 562 [ I980 I; C iliFinuncinl Co (DL1 v McKinney, 27 AD3d 224, 226 11 Dept ZOOh]). Plaintif l ATST,1C has demonstratcd that it is entitled to .judgment, and defendants have not shown that tlicrc is any matcrial issue of fhct that needs to be tried in this action. Plaintiff AISLIC has demonstratcd that it docs not have to pwvidc coverage for the Rodrrlgi4c.z action because lhc pollution conditions commenccd bcfore June 9, 1996. I hefive Kagor delendants and defendant Star do not raisc issues of fact that the terms of plaintiff AISLIC s policy are ambiguous, and thus the terms of plaintiff AISLIC s policy iire lo be interprcted according to [heir plain meaning (see LLivcrniint v Gerwul Acc. lns. Co. uj ilm., 79 NY2d 623, 629 [1092]). Thc five Kagor dekndants and defctidant Star cannot creak coveragc by arguing that plaintiff AIS1 .IC s disclaimer notice was improper (cf. h uir Pricc MeU: Siqply C orp. 1 Travclers Iuidem. C o., 10 NY3d 556, 563-564 [ZOOS] [same for a no-fliult insurance policy]). Plaintiff AJSLIC initially failed to include any plcadings in this iiction in support o f the motion, in violation OLC PLK 3212 (b) (SLY Weinstein v Gintli, 92 AD3d 526, 527 [ l h tDept 20121). This dcticiency was cured by dcfcndant Star and plaintiff subsequently submitting the pleadings. This court pcrmitted thc correction of the proccdural error, pursuant to C PLR 200 1 . l lic ijve Kagor deleidants arguc that B. Daly Painting Inc. (Daly), who was a dcfcadmt in the Rodrigiic action, shoiild liavc bceiijoincd in this action as a necessary party, p ~ ~ r s ~lo CP1,R ~ant 3 , - 1001 (a). Daly attempted lo abate the lead paint condition in ihc subjcct premises. The five Kagor . defkndantsdo not show that lhly's prcsence in this action is ncccssary to provide complete relicf, or that Daly's rights will bc iiicquitably aflkcted by ti cktermination in this action ( s w .Jocnnnc 5 ' . I' C:'LJW~, I IS h D 2 d 4, 7 [I" Dept 1'3861). 'I'he five Kagor defendants further arguc that plaintiff AISLIC's motjon was premature bccause ofthe iiced lor furthcr discovery (CPLR 3212 [i]). Thc fivc Kagor dehdaiits' contention is coiiclusory and failed to providc a proper basis to deleat h e motion (see Ken/ v 534 E. f f th Sl., 80 AD3d I Oh, I 14 [lstDcpt 20lo]). 111any event, no flcts discovcrcd in cither the Rodi~ijyuz action, or this action, co~ild result in creating coveragc under tlic AISLIC policy Thereforc, by this court's Ilccember 14, 20 I2 decision and order, on d e f ' d t of dcfcndaiits Milagros Rodrigucz arid David Rodriguc7, and on the merits, plaintiff AIS1,IC's motion for sumniary judgment was panted cleclaring in favor of plaintifl'AISLIC on all causcs of action ofthe complaint, including that plaintiff AISLTC has no duty to defend or pay for any loss on behalf of'its iiisureds, the iive Kagor def'eiidants in the Rodrigznez action, and the balance of the cross motion was denied. Pursuant to CPLR 81 06 and 8202, plaintiff AISLIC was awarded motion costs in [he total sum of $100 011 the motion, and a tota includes the $25 previously awarded. 1I)ecenibcr 24, 20 I 2 ~ _. -. RICIIAKD 1;. BRAUN, J.S.C.

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