Allstate Ins. Co. v Morocho

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Allstate Ins. Co. v Morocho 2021 NY Slip Op 33168(U) December 20, 2021 Supreme Court, Bronx County Docket Number: Index No. 800211/2021E Judge: Doris M. Gonzalez 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: 1] BRONX COUNTY CLERK 01/06/2022 12:40 PM NYSCEF DOC. NO. 20 INDEX NO. 800211/2021E RECEIVED NYSCEF: 01/06/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------X ALLSTATE INSURANCE COMPANY A/S/O ROSELA A. MILANEZ and ROMMEL R. MILANEZ, Plaintiff, - against - DECISION and ORDER Index No. 80021 l /2021E JOSE MOROCHO and CARLOS MOROCHO, Defendants. ----------------------------------------------------------------------X HON. DORIS M. GONZALEZ Upon the foregoing papers, the defendants Jose Morocho ("Jose") and Carlos Morocho (" Carlos") (collectively, "Defendants") move for an order dismissing the complaint of the plaintiff Allstate Insurance Company, a/s/o Rosela A. Milanez and Rommel R. Milanez ("Plaintiff') for failure to state a cause of action pursuant to CPLR 3211 (a)(7). Plaintiff opposes the motion and cross-moves for an order granting it leave to serve an amended complaint pursuant to CPLR 3025(b ). Defendants opposes the cross-motion. The motion and cross-motion have been transferred to the undersigned due to the unavai lability of Justice Mary Ann Brigantti. Plaintiff alleges that it is the insurer of Rosela R. Milanez and Rommel R. Milanez (hereinafter the "Insureds") under a homeowners insurance policy covering the Insureds ' property located at 1648 Radcliff Avenue, Bronx, New York (the "Property"). Plaintiff alleges that they are entitled to claim and pursue subrogation rights against third parties for losses paid out under the policy. Plaintiff alleges that on November 16, 2019, a fire occurred at the Property while non-party City Wide General Construction, Inc. ("City Wide") and its principal and emplo_ ees, these defendants, were performing roofing work. The complaint alleges that the resulting property damage caused solely caused by Defendants' negligence in inter alia operati ng a blow torch in an unsafe manner and fail ing to properly supervise employees performing the roofing work. Plaintiff remitted a total of $60,587.87 to the Insureds for the damag to the Property, and Plaintiff now seeks a judgment against Defendants in that amount. 2 of 5 [*FILED: 2] BRONX COUNTY CLERK 01/06/2022 12:40 PM NYSCEF DOC. NO. 20 INDEX NO. 800211/2021E RECEIVED NYSCEF: 01/06/2022 Defendants move to dismiss the complaint, alleging that it fails to cause of action. Plaintiff opposes, and cross-moves for leave to serve an amended complaint with additional facts concerning Defendants' negligent conduct. Motion to Dismiss On a motion to dismiss pursuant to CPLR 3211 (a)(7), a court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v. DairnlerChrysler Corp ., 292 AD2d 118 [1st Dept. 2002]). In other words, the determination is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Stendig, Inc. v. Thorn Rock Realty Co. , 163 AD2d 46 [l st Dept. 1990]; Leviton Manufacturing Co., Inc. v. Blumberg, 242 AD2d 205 [1st Dept. 1997] [on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]; see also M H B. v. E. C. F.S. , 177 A.D.3d 479, 480 [1st Dept. 2019]["[I]n the context of this motion to dismiss, the Court does not assess the relative merits of the complaint's allegations against defendant's contrary assertions or to determine whether or not plaintiffs can produce evidence to support their claims"]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (CPLR 3026). The court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory" (Leon v. Martinez , 84 NY2d 83 , 87- 88 [1994]). The motion should be denied if, from the pleading's four comers, factual allegations are discerned which taken together manifest any cause of action cognizable at law (McGill v. Parker, 179 AD2d 98 [l st Dept. 1992]). Defendants here assert that, as per Plaintiff's allegations, this matter arises from construction work in which Plaintiff's Insureds had a contract with non-party City Wide, and Defendants are the principal and employee of City Wide. Defendants contend that persons may not be held individually liable on contracts of their corporations absent certain circumstances, and " [o]fficers, directors or employees of a corporation do not become liable to one who has contracted with the corporation for inducing the corporation to breach its contract merely because they have made decisions and taken actions that resulted in the corporation' s breaching its contract" (Defs. Memo. of Law at 4-5 , citing Stern v. H DiMarzo, Inc., 77 A.D .3d 730, 7302 3 of 5 [*FILED: 3] BRONX COUNTY CLERK 01/06/2022 12:40 PM NYSCEF DOC. NO. 20 INDEX NO. 800211/2021E RECEIVED NYSCEF: 01/06/2022 31 [2d Dept. 201 OJ). Defendants, further assert: " [W]hen an officer or director acts on behalf of his [or her] corporation, he [or she] may not be held liable for inducing [the] corporation to violate its contractual obligations unless his [or her] activity involves separate tortious conduct or results in personal profit" (id., citing Stern, 77 A.D.3d at 730-31). Defendants therefore argue that Plaintiffs complaint is deficient because "there are no allegations of intentional torts" or that Defen ants "had purported to bind themselves individually to this construction contract," and " [t]herc are no allegations stating that the defendants' tortious conduct resulted in personal profit.'· Plaintiff, however, is not asserting a breach of contract claim against Defendants. Plaintiff instead alleges that the Defendants engaged in "separate tortious conduct" (id.), that they were affirmatively negligent in using a blow torch on the Insureds' roof thus starting a fire and causing property damage. With respect to Carlos, an alleged employee of City Wide, it is well-settled that an agent is liable to a third party harmed by the agent's tortious conduct, regardl ess of whether the agent was acting "as an agent or an employee, with actual or apparent authority, or within the scope of employment" (Restatement [Third] of Agency §7.01 [2006] ; see, e.g. , DePetris & Bachrach LLP v. Srour, 71 A.D.3d 460,463 [1 t Dept. 201 OJ). Plaintiff thus adequately stated a negligence claim against Carlos. With respect to Jose, the alleged principal of City Wide, " it has long been held by [the First Department] that a corporate officer who participates in the commission of a tort may be held individually liable ... regardless of whether the corporate veil is pierced" (Fletcher v. Dakota, Inc., 99 A.D.3d 43 , 49 [1 st Dept. 2012]; see also Ramos v. 24 Cincinatus Corp., 104 A.D.3d 619, 620 [Pt Dept. 2013]). Here, Plaintiffs complaint alleged that Jose actively participated in the tort by negligently operating a blow torch on the subject roof and/or for failing to properly supervise employees performing the roofing work at the property (see, e.g. , Peguero v. 601 Realty Corp., 58 A.D.3d 556, 558-59 [151 Dept. 2009][personal liability may be imposed on a corporate officer for an affirmative tortious act]). In light of the foregoing, Defendants' motion to dismiss pursuant to CPLR 3211 (a)(7) is denied . 3 4 of 5 [*FILED: 4] BRONX COUNTY CLERK 01/06/2022 12:40 PM INDEX NO. 800211/2021E NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/06/2022 ro s-Motion to Amend Plaintiff cross-moves for leave to serve an amended complaint to assert additional fact as to the negligent conduct and liability of Defendant . It is "fundamental that leave to amend a pleadi g should be freely granted, so long as there i no surprise or prejudice to the oppo ing party' (Kocourek v. Booz Allen Hamilton Inc. , 85 A.D.3d 502 [1st Dept 2011] citing CPLR 3025 [b ]). "On a motion for leave to amend, plaintiff need not establish the merit of its proposed new allegations ... but simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit. .. " (MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499 [15 1 Dept. 20 IO]) . Plaintiffs proposed amended complaint includes additional facts, and the cross-motion is supported by a report from its fire investigator. The report notes among other things that after th i incident occurred, Jose Morocho wa arrested for reckless endangerment due to his company u ing a torch on a combustible roof. Plaintiffs submissions satisfy its minimal burden of sho, ing that the proposed amended complaint is not 'is not palpably insufficient or clearly devoid of merit' ( ee Brummer v. Wey 187 A.D .3d 566 [I I Dept. 2020)). Defendants do not allege that they will suffer any prejudice becau e of the proposed amendments. Furthermore, Plainti failure to " red-line" the proposed amended complaint may be overlooked since Plainti fPs affirmation of counsel sufficiently highlighted the proposed amendments (see Berkeley Research Group, LLC v. FT! Consulting, Inc., 157 A.D.3d 486,490 [1 st Dept. 2018]). ccordingly, it is hereby ORDERED that Defendants' motion to dismiss is denied, and it is further ORDERED that Plaintiffs cross-motion for leave to serve an amended complaint is granted and a supplemental summons and amended complaint, in the form annexed to the crossmotion papers shall be served, in accordance with the CPLR, upon the parties in this action within 30 days after service of a copy of this order with notice of entry. This constitutes the Decision and Order of this Court. ENTER Doris M 4 5 of 5 <ii!2t:

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