Visto Realty Corp. v Castlepoint Ins. Co.

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Visto Realty Corp. v Castlepoint Ins. Co. 2012 NY Slip Op 33140(U) December 26, 2012 Supreme Court, New York County Docket Number: 107476/10 Judge: Shlomo S. Hagler 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] ' CASTLE POINT INSURANCE SEQUENCE NUMBER : 003 SUMMARY JUDGMENT ng papers, it is ordered [* 2] Plaintiff, Index No.: 107476/10 against- Motion Sequence No.: 003 1 FILED CASTLEPOINT INSURANCE COMPANY, 1801 LAUNDRY CORP, d/b/a STATION LAUNDROMAT, and CARLOS TORRES, ------- ----I *I - - - . * - - - - - . 3 - - - - . Defendants. ----- ---x *I------. 1 _ - _ _ _ _ _ . . 1 - - - _ _ _ _ I ______ c SH1,OMO S. HAGLER, J.S.C.: JAM 0 7 2013 ? Procedural Historv -ctGRlffs- ..I. NEWrm Plaintiff Visto Realty Corp. ( Vislo or plaintiff ) moves, pursuant to CPLR 5 3212, for: (I) :in oi.der-granting summary judgment in favor of plaintiff as against defendant 1801 Laundry C orp. d/b/a Station Laundromat ( Laundromat ); (2) a declaration that Laundromat is required to defend and indemnify plaintiff i n the underlying personal injury action filed in August, 2009 and entitled Ccirlos 7brre.s v Visto Kridty Corp., Supreme Court, Bronx County, Index No. 306975/09 ( Personal Injury Action ); and (3) an order granting summary judgment in favor of plaintiff as against ciefendant CastlePoint lnsurance Company ( CastlePoint ) and a declaration that plaintiff is an insured on CastlePoint s policy and, as such, that CastlePoint is required to defend and indeinnify plaintiff in the underlying Personal Injury Action. CastlePoint opposes the motion and cross-moves, pursuant to CPLR 5 3212, for summary judgment declaring that it has no obligation to defend or indemnify plaintiff in the underlying Personal In.jury Action. [* 3] Oral argument was held on these motions on June 11,2012. At that time, this Court granted Laundromat s motion to dismiss the claims asserted against Laundromat in this action. As a consequcnce, the only issues currently before this Court are the insurance claims between Visto and CastlePoint. Both the motion and cross-motion are consolidated herein for disposition. Backwound In thc underlying Personal Injury Action, Carlos Torres ( Torres )alleged that he tripped and fell outside of the premiscs located at 1801 Edison Avenue, Bronx, New York ( subject premises ) owned by plaintiff and leased by Laundromat. (See, Summons and Complaint, Exhibit B to the cross-motion). Torres claims that the cause of his trip and fall was a sidewalk flag that was raised up because of vegetation growing out of the sidewalk. (See, Verified Bill of Particulars, Exhibit A to the cross-motion). - Visto asserts that i t IS an additional insured under the terms of the general commercial liability insurance policy issued by CastlePoint to Laundromat that was in effect at the time of Torres accident and that CastlePoint failed to disclaim coverage. This Court notes that Visto failed lu attach a copy of the insurance policy to the motion. In support of its cross-motion, and in opposition to Visto s motion, CastlePoint states that, pursuant to the terms of its Commercial Lines Policy with Laundromat for a period December 22, 2008 to December 22,2009 ( Policy ),the only individuals or entities that qualify as an insured are L,aiindromat, ]Is officers, directors and employees; the Policy does not list any other insureds. (See, Policy, Exhibit 1 t o the cross-motion). In addition, the Policy coversLaundromatfor bodilyinjury 1. That motion, sequence number 004, was made separately to the motions now before this Court for consideration. -2- [* 4] for which it is obligated to pay damages by reason of the assumption of liability in a contract or agreement, but only if the contract or agreement falls within the policy s definition of an insured contract, which is defined as a contract for the lease of premises. Zd. Further, the Policy s supplemental payments provision states that Castlepoint will defend, but not indemnify, Laundromat s indemnitees as follows: lf we defcnd an insured against a suit and an riiclcmnitet: of the insured is also named as a party to the suit , wc will defend that indemnitee if all of the following conditions are met: a. The suit against the indemnitee seeks damages for which the insured has assumed the liability of the indemnitee in tl contract or agreement that is an insured contract ; b. The obligation to defend, or the cost of the defense of, that indemnitee, has also been assumed by the insured in the same insurance contract ; c. The allegations in the suit and the information we know about the occurrence are such that no conflict appears to exist between the interests of the insured and the interests of the indemnitee. Id. According to the provisions of the lease dated June 1,2006, entered into between Visto and Laundromat, Laundromat will indemnify and save harmless [plaintiff] for and against any and all liability . . arising from injury ... to person ... of any nature. (See, Lease, Exhibit 3 to the cross- motion). Castlepoint statcs that this Lease does not obligate Laundromat to defend Visto. By letter dated February 9,2010, Visto s counsel first notifiedCastlePoint about the accident which occurred on February 3, 2009, seeking coverage lor Visto as an alleged additional insured under Laundromat s policy. CastlePornt received this letter six months after Torres commenced the -3- F [* 5] Personal Injury Action and more than a year after the accident occurred. (See, Exhibit B to the cross-motion). CastlePoint avers that the February 9,2010 letter contained a certificate of insurance, dated October 16,2009 (more than seven months after &he occurrence), that recited that Visto was named as an additional insured ... for the specified job site on the Castlepoint policy with Laundromat. (See, Exhibit 4 to the cross-motion). This certificate is signed by Patrick J. Cavallo ( Cavallo ), a person with whom Castlepoint states that it does not have any contractual or other relationship. Further, Castlepoint maintains that it never received any request from Cavallo seelung to add Visto to the Policy. Based on the foregoing, Castlepoint determined that it did not issue coverage to Visto and, thci.ctore, declined t o defend or indemnify it. It is CastlePoint s position that Visto is not an insured or additional insured under its Policy with Laundromat and, consequently, has no rights under that Policy. CastlePoint contends that the certificate of insurance is not insurance, may not be used to alter the terms of an insurance policy, and t h a t i n m y evcnt the certificate presented by Visto was dated seven months after the occurrence. In addition, Castlepoint argues that while it may be required to indemnify Laundromat if Laundromat is found liable in the underlying Personal Injury Action, it has no obligation to indemnify plaintiff, Laundromat s indemnitee, nor does it have any duty to defend plaintiff since the Lease entered into between plaintiff and Laundromat does not obligate Laundromat to defend pI ai n ti fl . Lastly, CastlePoint contends that, since Visto is not covered under the Policy, it has no duty tn disclaim coverage as soon as reasonably possible. -4- [* 6] In opposition to CastlePoint s cross-motion, and in support of its own motion, Visto asserts that it is an additional insured under the Policy and Lease provisions noted above, and that CastlePoint s failure to disclaim coverage until the commencement of the present lawsuit is untimely, mandating that CastlePoint both defend and indemnify Visto in the underlying Personal Injury action. Discussion The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material from the casc [internal quotation marks and citation omitted]. Scrntiago v Filmin, issues of f a c ~ 35 AD3d 184, 185- 186 ( 1 st Dept 2006). The burden then shifts to the motion s opponent to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact. Muzurek v Metropnlitcrn M u s u m of Art, 27 AD3d 227, 228 (1st Dept 2006); see Z u c k e m a n v Ct of New iy York. 49 NY2d 557,562 ( 1 980). If there is any doubt as to the existence of a triable fact, the motion for surn~-nat~yjudgment be denied. See Rotiiba Extruders v Ceppos, 46 NY2d 223,231 (1978). must The branch of Visto s motion seeking summary judgment in its favor as against CastlePoint is denied, and Castlepoint s cross-motion for summary judgment seeking to dismiss the complaint ertcd against i t is granted. Castlepoint met its initial burden by demonstrating that Visto was not named as an insured or an additional insured under its Policy with Laundromat. The burden then shifted to Visto, as the party claiming insurance coverage, to provide evidence in admissible form to raise a triable issue of fact LISto whether it is entitled to such coverage. SiriusAm. Ins. Co. v Burlington Ins. Co., 81 AD3d 562 (1st Dept 201 I ) . -5- [* 7] Visto relies on two documents to establish its right to coverage under the Policy: the Lease and thc certificate of insurance., Thc Lease only requires Laundromat to indemnify Visto, not to defend plaintiff, for any I i d ~ l i t yarising from a claim of bodily injury, among other things, and does not mandate that Laundrorn;it namc Visto as an additional insured under its Policy with CastlePoint. According to the Policy s provisions, quoted above, CastlePoint is only obligated to pay damages that its insured, Laundromat, is obligated to pay under the terms of its Lease. Since, at this juncture, no liability has been established, Laundromat I S not obligated to pay any damages to Torres and, hence, CastlePoint is irndcr n o present indemnification obligation. With rcspect to the certificate of insurance, since the certificate of insurance was issued as :i matter of infoimation only and tendered after the loss, it is [not] proof of insurance ... . Rodless Propy., L.P. 1) Wc.stctiester Fire Ins. Co., 40 AD3d 253, 254-255 (1st Dept 2007); See Home Depot [ J . S . A , I r i c , v Nritioiial Fire 6 Mar. I r i s . Co., 55 AD3d 671 (2nd Dept 2008). ; Conseyucntly, neither of these documents supports Visto s contention that it is an additional insured under CastlcPoint s Policy with Laundromat. Finally, CastlePornt did n o t have to disclaim coverage in a timely fashion when no such covcragc CXISIS Insofar ;is t h e claim fell outside of the policy s coverage, the carrier was not I-cquired l o discluini 3s to cover-agc that did not exist. Tribrca Broadway Assoc. v Mount Vernon Fire I n s . Co., 5 AD3d 198, 200-201 (1st Dcpt 2004); See York Restorutiorz Corp. v Solty s Constr., I r i c b . , 79 hD3d 86 I , 863 (2nd Dept 2010). -6- [* 8] Conclusion Based on the foregoing, i t is hereby ORDERED, the branch of plaintiff's motion seeking summary judgment as against defendant 1801 Laundry Corp. d/b/a Station Laundromat is denied as moot; and it is further ORDERED, the branch of plaintiff's motion seelung summary judgment as against CilktleF'nlnI Incurmcc Company I S denied; and it is further ORDERED, that CastlePoint Insurance Company's cross-motion for summary judgment dismissing the complaint as asserted against it is granted and the complaint is severed anddismissed as against said defendant; and it is further ORDERED, ADJUDGED, A N D DECLARED, that defendant CastlePoint Insurance Company is not obligated to provide a defense to and provide coverage or indemnification at this juncturc to plaintiff Visto Realty Corp. in the underlying personal injury action, Curbs Torres v Vixlo Realty Corp., Index No, 306975/09, pending in Supreme Court, Bronx County; and it further ORDERED, the remainder of the action as asserted against Carlos Torres shall continue; and it is further ORDERED, that the remaining parties shall appear for a conference in Part 17, Room 581 at 111 Centre Street, New York, New York on J&nuary28, 2013 at 11:OO AM. ENTER: J A Dated : i ' UCLL l l l L J C 1 L L J , I - c Hon. Shlomo S. Hagler, J'.S.c. New York, Ne -7-

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