Karven-Veres v Silver Springs Farm LLC

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Karven-Veres v Silver Springs Farm LLC 2017 NY Slip Op 33391(U) November 1, 2017 Supreme Court, Dutchess County Docket Number: Index No. 50317/2017 Judge: Maria G. Rosa Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: DUTCHESS COUNTY CLERK 11/02/2017 03:05 PM NYSCEF DOC. NO. 45 INDEX NO. 2017-50317 RECEIVED NYSCEF: 11/02/2017 SUPREME COURT STATE OF NEW SUPREME COURT - STATE NEW YORK YORK DUTCHESS COUNTY COUNTY DUTCHESS Present: Present: Hqn. Hon. MARIA MARIA G. ROSA ROSA Justice. Justice. xX URSULA KARVEN-VERES, URSULA KARVEN-VERES, Plaintiff, Plaintiff, DECISION DECISION AND AND ORDER ORDER -against-againstIndex Index No: 50317/2017 50317/2017 SILVER SPRINGS FARM SIL VER SPRINGS FARM LLC and WINLEY WINLEY FARMLLC, FARMLLC, Defendants. Defendants. x - - - - - - - ' - - - - - - - - - - - - -X WINLEY FARM WINLEY FARM LLC, LLC., Third- Party Plaintiff, Third-Party Plaintiff, -against-against- WORMER INTERNATIONAL INTERNATIONAL LLC, VAN WORMER ThirdDefendant. Third- Party DefendanL - - - - - - - - - - - - - - - - - -xX fol1owing papers defendant's The following papers were read and considered considered on third-party third-party defendant's. motion motion to dismiss: dismiss: ., NOTICE NOTICE OF MOTION MOTION AFFIRMATION IN SUPPORT SUPPORT AFFIRJ\1ATION EXHIBIT EXHIBITl1 AFFIDAVIT IN SUPPORT SUPPORT AFFIDAVIT EXHIBIT A EXHIBIT MEMORANDUM OF LAW LAW IN SUPPORT SUPPORT MEMORANDUM AFFIRMATION IN OPPOSITION OPPOSITION AFFIRMATION EXHIBITS A&B EXHIBITS [* 1] 1 of 5 \ ,! FILED: DUTCHESS COUNTY CLERK 11/02/2017 03:05 PM NYSCEF DOC. NO. 45 INDEX NO. 2017-50317 RECEIVED NYSCEF: 11/02/2017 to pursuant to complaint pursuant third-party complaint the third-party dismiss the Third-party moves to dismiss ("defendant") moves defendant ("defendant") Third-party defendant cause failure to state upon failure based upon dismiss based CPLR s3211(a)(l) state aa cause motion to dismiss considering a motion l(a)(l) and (7). In considering CPLR §321 Inc., MBIA, v N.V. Bank, AMRO ABN AMRO Bank, N.V. MBIA, Inc., of action, action, the court court must construe the complaint liberally. ABN complaint liberally. must construe of alleged facts as alleged the facts determine "whether 17NY3d s3211(a)(7). "whether the only to determine court is only l(a)(7). The court CPLR §321 (211); CPLR 208 (211); l 7NY3d 208 of cause a has plaintiff the whether fit within cognizable legal theory," ascertain whether the plaintiffhas cause of action, action, theory," and to ascertain within in any cognizable fit true as true accept must court The ). 1994 ( NY2d not whether it has stated one. Leon v Martinez, NY2d 83 (1994). The court must accept as 84 Martinez, Leon stated has not whether Less 4 motion. the opposition s the facts that are alleged in the complaint and submissions in opposition to the motion. Lots 4 Less submission complaint alleged the facts that dismiss aa to dismiss motion to 2017). A motion Dep't 2017). (4thth Dep't Stores, Inc. v Integrated Properties, Inc., AD3d AD3d 1181 (4 152 Properties, Integrated Stores, founded on documenta defense is founded that a defense complaint s3211(a)(1) documentaryry ground that (a)(l) on the ground CPLR §3211 pursuant to CPLR complaint pursuant the refutes the utterly refutes evidence utterly documentary evidence evidence "may where the documentary granted only where appropriately granted "may be appropriately evidence Food 4777 Food law." 4777 of law." matter of defense as a matter plaintiffs establishing a defense conclusively establishing allegations, conclusively factual allegations, plaintiffs factual nd nd 2017). Dep't 2017). AD3d 1054 (2 Dep't Gallo, P.C., P.c., 150 AD3d Anthony P. Gallo. Servs. Corp. v Anthony horse horse at a horse when she fell off action alleges alleges she sustained sustained injuries injuries when off of of a horse this action plaintiff in this The plaintiff farm. of the farm. owner of the owner defendant as the named as a defendant farm Farm, LLC was named Winley Farm, shoot. Winley during a film shoot. farm during third-party with " Agreement with third-party Prior entered into a "Location "Location Agreement" Farm, LLC entered Winley Farm, filming, Winley Prior to any filming) leased aa Wormer leased Van Wormer which Van under Wormer") defendant Van Wormer International, LLC ("Van Wormer") under which ("Van al, defendant Van Wormer Internation Van that part, relevant in provided, relevant part, that Van agreement provided, portion That agreement filming. That horse farm for a day for filming. of the horse portion of Farms, Winley Farms, naming Winley insurance" naming liability... insurance" Wormer obtain "adequate commercial l general general liability "adequate commercia would obtain Wormer would hold and "indemnify to agreed Wormer also agreed Van Wormer LLC as an additional "indemnify and hold payee. Van and loss payee. insured and additional insured third-party without limitation, harmless (Winley Farm] claims (including, (including, without limitation, third-party Farm] free from any and all claims harmless [Winley Wormer, Van of omission or act arising from (i) any claims) omission of Van Wormer, liability arising injury, loss or liability damage, injury, claims) for any damage, horse Wormer's use of Van Wormer's and Van contractors" and its of aa horse licensees, or contractors" invitees, licensees, guests, invitees, employees, guests, agents, employees, its agents, therewith. and/or associated therewith. items associated specified items and/or specified complaint plaintiffs complaint forth in plaintiffs Winley complaint incorporates incorporates the facts set forth third-party complaint Farm's third-party Winley Farm's for action for of action causes of asserts causes agreement. It asserts and location agreement. of the location terms of about the terms facts about additional facts states additional and states negligence and n contributio ation, breach of contract, contract, contractual contractual and common law indemnific indemnification, contribution and negligence. . and common breach of adequately has adequately that it has finds that court finds the court Farm, the Construing Winley Farm, favorable to Winley most favorable light most Construing the facts in a light common ation, indemnific contractual stated cognizable cognizable causes causes of of action action for breach of contract, contract, contractual indemnification, common law law breach of stated obtain Wormer Van required agreement indemnification and contribution. The parties' agreement required Van Wormer to obtain parties' The n. contributio and tion indemnifica insured. Farm as an additional Winley Farm naming Winley "adequate" commercia commercial l general general liability liability insurance insurance naming additional insured. "adequate" adequate not adequate was not obtained was Wormer obtained Van Wormer policy Van Winley insurance policy that the insurance allegations that made allegations Farm has made Winley Farm the from resulting injury bodily cover as the coverage denial letter indicates that the policy did not cover bodily injury resulting from the policy as the coverage denial letter indicates that Van Moreover, breach of use of a horse. This allegation allegation is sufficient sufficient to state state a breach of contract contract claim. claim. Moreover, Van horse. This use of to pursuant to dismiss pursuant motion sustain Wormer's production of the insurance policy does not sustain its motion to dismiss does policy insurance Wormer's production of insurance the that allegation that Farm's allegation Winley Farm's CPLR §3211 s3211(a)(l) does not insurance refute Winley utterly refute not utterly policy does (a)(l) as the policy CPLR agreement. parties' of was not adequate within the meaning of the parties' agreement. meaning adequate within agreement parties' agreement The parties' claim. The Winley indemnification claim. contractual indemnification stated a contractual further stated has further Farm has Winley Farm it against it asserted claims harmless for claims asserted against Farm harmless required Winley Farm hold Winley indemnify and hold Wormer to indemnify Van Wormer required Van that stated that Wormer stated Van Wormer pertaining injury arising arising from conduct. In the agreement agreement Van Wom1er' s conduct. Van Wormer's from Van pertaining to injury 2 [* 2] 2 of 5 FILED: DUTCHESS COUNTY CLERK 11/02/2017 03:05 PM NYSCEF DOC. NO. 45 INDEX NO. 2017-50317 RECEIVED NYSCEF: 11/02/2017 due own due its own on its relying on was relying and was provided and being provided it was horses being any horses of any condition of with the. condition satisfied with fully satisfied was fully Van horses. Winley diligence with the suitability suitability of of such such horses. Win ley Farm Farm is claiming claiming that that Van to the respect to the respect with the diligence as named be to Farm Winley and inj.ury and Winley Farm caused injury Wormer's ensuring the suitability of ofthe be named as horse caused the horse the suitability not ensming Wormer's not provision. indemnification provision. agreement's indemnification a defendant the agreement's triggering the thereby triggering action, thereby negligence action, defendant in a negligence that by "recognizing enrichment by unjust enrichment and unjust Common-law "recognizing that unfairness and avoids unfairness indemnification avoids Common-law indemnification between as which but him by owed person who, in whole or in part, has discharged a duty which is owed by him but which as between which duty person who, whole or part, has discharged to indemnity.'' the other himself and another another should should have discharged by the other is entitled entitled to indemnity." McDermott McDermott been discharged have been himselfand defendant the and plaintiff the that showing v City of New York, 50 NY2d 211 (1980). It "requires a showing that the plaintiff and the defendant "requires City of New York, 50 NY2d 21 I ( 1980). plaintiff the plaintiff between the as between which, as duty which, the duty owed discharged the plain ti ff discharged the plaintiff that the and that parties, and third pm1ies, to third duty to owed a duty Ltd. Consultants. Bresky Murray defendant." the by and the defendant, should have been discharged by the defendant." Murray Bresky Consultants. Ltd. discharged been have and the defendant, should rd third-party the third-pm1y Construing the 2013). Construing v New 106 AD3d 1255 (3 (3rd Dept' Dept' 2013). AD3d 1255 Inc., 106 Manager's Inc., Comp. Manager's York Compo New York duty to owed Worm~r Van that alleged complaint in a light most favorable to Winley Farm, it is alleged that Van Worm~r owed a duty Farm, Winley light most favorable complaint thirda if that if thirdasserts that provided. It further was provided. the ensure the suitability of of the she was ,further asserts horse she the horse the suitability plaintiff to ensure the plaintiff no have no would have Farm would Winley Farm that duty, party duty, Winley of that breach of Wormer"s breach Van Wormer's on Van based on injured based was injured party was for responsibility all responsibility for assumed all obligation contractually assumed Wormer contractually Van Wormer because Van party because third party that third to that obligation to law indemnification for common vetting These facts are sufficient sufficient to state state claims claims for common law indemnification facts are used. These horse used. the horse vetting·.--;--; the plaintiff. the plaintiff. negligence to the liable in negligence held liable be held and should Winley Farm be Winley Farm contribution should and contribution negligence against action sounding Winley failed to state state a cause cause of of action sounding in negligence against has failed however, has Farm, however, Winley Farm, the defendant the by owed duty are action of Van Wonner. The elements of a negligence cause of action are a duty owed by the defendant to the cause negligence of elements The Wormer. Van 900 AD3d 83 Shahid, v Jiminez Shahid, therefrom. Jiminez plaintiff, AD3d 900 resulting therefrom. injuty resulting an injury and an duty and that duty of that breach of plaintiff, a breach Van that Van nd Dep't be deduced which it can 2011).). The The complaint complaint fails assert any any facts facts from from which can be deduced that fails to assert Dep't 2011 (2nd exclusively derive would duty any of Wormer sole source source of any duty would derive exclusively The sole breached. The was breached. that was duty that owed it a duty Wormer owed from precluded from Farm is precluded Winley Farm circumstances, Winley such circumstances, from Under such paiiies. Under the pm1ies. between the contract between the contract from the for basis a assert fails Farm Winley tort. recasting the breach of contract claim as a separate tort. Winley Farm fails to assel1 basis for separate recasting the breach of contract claim of breach of alleged breach the alleged addition to the or in addition distinct or duty distinct separate tort of duty breach of from a breach arising from liability arising tort liability separate NY2d 79 Corp., Signal Fed. Sommer See contract and thus fails to state a claim for negligence. See Sommer v Fed. Signal Corp., 79 NY2d negligence. for contract and thus fails to state claim 540 (1992). 540 (1992). any enforcing any precluded from Farm is precluded The court further from enforcing Winley Farm that Winley claim that movant's claim rejects movant's further rejects The couii statute That §5-321. Law Obligations General indemnification provisions the contract pursuant to General Obligations Law 95-321. That statute pursuant contract the in indemnification provisions length arm's length at arm's negotiated at lease negotiated does provision in a lease indemnification provision an indemnification of an enforcement of preclude enforcement not preclude does not requirement. procurement insurance an with between two sophisticated parties when coupled with an insurance procurement requirement. coupled when parties sophisticated between two nd Dep't two sophisticated Here, two 2014). Dep't 20 Karanikolas Taverna, LLC, 552 (2nd 14). Here, sophisticated entities entities AD3d 552 120 AD3d LLC, 120 Elias Taverna, Karanikolas v Elias for its liability from Farm Winley negotiated an indemnity clause not for the purpose of exempting Winley Farm from liability for exempting of purpose the for not clause indemnity negotiated an Wormer. Van Wormer. and Van between it and parties between own negligence allocate the risk ofliability ofliability to third third parties the risk but to allocate negligence but own hereby Based foregoing, it is hereby the foregoing, on the Based on negligence the negligence that the the extent to the ORDERED that dismiss is granted granted to extent that motion to dismiss Wormer's motion Van Wormer's that Van ORDERED further dismissed. It is further hereby dismissed. cause complaint is hereby third-pa1iy complaint the third-pal1y action in the of action cause of 3 [* 3] 3 of 5 FILED: DUTCHESS COUNTY CLERK 11/02/2017 03:05 PM NYSCEF DOC. NO. 45 INDEX NO. 2017-50317 RECEIVED NYSCEF: 11/02/2017 ORDERED that that in all other other respects respects the the motion motion to dismiss dismiss is denied. denied. ORDERED This constitutes constitutes the the decision decision and and order order of of the the court. court. This The parties parties are are reminded reminded that that a compliance compliance conference conference is scheduled scheduled for for November November 14, 14,2017 2017 The 9:45 a.m. a.m. at 9:45 ENTER: ENTER: Dated: November \,2017 Dated: November \, 2017 Poughkeepsie, New Yark Poughkeepsie, New York ,~~ M~RIA G. ROSA, .l.S.C. .l.S.c. M~RJAG.R0SA, William B. Kerr, Kerr, Esq. Esq. William Kerr,LLP Kerr,LLP Floor Wall Street, Street, 12thth Floor 44 Wall New York, NY 10005 New York, NY 10005 Dr. Marcus Marcus A. Ernst Ernst Dr. Ernst & Linder, Linder, LLC LLC . Ernst Battery Place, Place, Suite Suite 1307 1307 17 Battery New York, NY 10004 New York, NY 10004 Michael S. Brown, Brown, Esq. Esq. Michael Nicoletti, Gonson, Spinner, Spinner, LLP LLP Nicoletti, Gonson, 555 Fifth Fifth A Avenue, Floor . 555 venue, 8thth Floor New York, NY 10017 New York, NY 10017 John Balistriere, Balistriere, Esq. Esq. John Balestriere Fariello Fariello Balestriere 225 Broadway, Broadway, 29 29thth Floor Floor 225 New York, NY ] 0007 New York, NY 10007 Laura Ashley Ashley Martin, Martin, Esq. Esq. Laura Goldberg & Segalla, Segalla, LLP LLP Goldberg 11 Maiiine Mmiine Avenue, Avenue, Suite Suite 750 750 11 White Plains, Plains, NY 10606-1934 White NY 10606-1 934 Scanned to the the E-File E-File System System only only Scanned Pursuant to CPLR CPLR §5513, 95513, an appeal appeal as ofright of right must must be be taken taken within within thirty thirty days days after after service service by by a Pursuant party upon upOn the the appellant appellant of of a copy copy of of the the judgment or order order appealed_ appeal ed_from and written written notice notice of of party judgment or from and 4 [* 4] 4 of 5 FILED: DUTCHESS COUNTY CLERK 11/02/2017 03:05 PM NYSCEF DOC. NO. 45 INDEX NO. 2017-50317 RECEIVED NYSCEF: 11/02/2017 except that that when when the appellant appellant has served served a copy of of the judgment order and and written written its entry, except judgment or order notice notice of of its entry, entry, the appeal appeal must must be taken taken within within thirty thirty days thereof. thereof. 5 [* 5] 5 of 5

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