Century Surety Company v. Odessey Mechanical Corp. et al, No. 1:2009cv01040 - Document 23 (E.D.N.Y. 2011)

Court Description: ORDER granting 18 Motion for Summary Judgment. Ordered by Senior Judge I. Leo Glasser on 9/27/2011. (Green, Dana)

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Century Surety Company v. Odessey Mechanical Corp. et al Doc. 23 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x CENTURY SURETY COMPANY, Plaintiff, Mem orandum and Order 0 9-cv-10 40 - against ODYSSEY MECHANICAL CORP., TRUMBULL EQUITIES, LLC, and TOWER INSURANCE COMPANY OF NEW YORK Defendants. ------------------------------------------------------x GLASSER, United States District J udge: Plaintiff Century Surety Com pany (“Century”) filed this declaratory judgm ent action, pursuant to 28 U.S.C. § 220 1, against defendants Odyssey Mechanical Corp. (“Odyssey”), Trum bull Equities, LLC (“Trum bull”) and Tower Insurance Com pany of New York (“Tower”) in connection with a fire that occurred on Novem ber 22, 20 0 8 at Trum bull’s com m ercial property. Century seeks a judgm ent declaring that it is not obligated to defend against a suit by defendants or com pensate any parties for fire dam age allegedly caused by the actions of its policy-holder, Odyssey, because those actions are not covered by Odyssey’s insurance policy. Century now m oves for sum m ary judgm ent. Defendant Tower opposes the m otion, arguing the Court lacks subject m atter jurisdiction because there is no case or controversy. For the following reasons, the Plaintiff’s m otion is GRANTED. 1 Dockets.Justia.com BACKGROU N D The following facts are undisputed, unless otherwise noted. In 20 0 8, Odyssey purchased com m ercial general liability insurance, Policy CCP54782, from Century, effective for the period May 9, 20 0 8 to May 9, 20 0 9 (the “Policy”). Plaintiff’s Statem ent of Material Facts Pursuant to Rule 56.1 (“Pl.’s R. 56.1”) ¶ 1; Declaration of Copernicus T. Gaza (“Gaza Decl.”) Ex. A. Under “business description,” the policy listed “HVAC INST./ REPAIR.” Pl. R. 56.1 ¶ 2; Gaza Decl. Ex A at 3. “HVAC” is an industry abbreviation for “Heating, Ventilation and Air Conditioning.” See Gaza Decl. Ex. A at 9 (classifying the business as “Heating or Com bined Heating and Air Conditioning Equipm ent”). Under “specifically covered operations,” the policy stated “Contractor [the insured, Odyssey] Doing HVAC Installation and Repair Work.” Pl.’s R. 56.1 ¶ 6; Gaza Decl. Ex A at 9. Under the calculation for “Prem ium ” the business was classified as “Heating or Com bined Heating and Air Conditioning Equipm ent – dealers or distributors only.” Pl.’s R. 56.1 ¶ 5; Gaza Decl. Ex A. at 9. In the fall of 20 0 6, Trum bull contracted with Odyssey to install a sprinkler system in Trum bull’s property at 31-10 37th Avenue, Long Island City, New York (the “37th Ave Building”), a 5-story com m ercial building. Pl.’s R. 56.1 ¶¶ 15-18; Gaza Decl. Ex. G. As part of that installation, Odyssey hired a subcontractor, New York City Sprinklers 1, to provide the labor and secure the perm its for the work. Pl.’s R. 56.1 ¶¶ 15 & 17; Gaza Decl. Ex. G. 1 There is som e confusion in the record as to the nam e of the subcontractor corporation. Odyssey originally referred to the subcontractor as “New York Sprinkler Co. (NYSC)” Pl.’s R. 56.1 ¶ 15; Gaza Decl. Ex. G. However Plaintiff states the corporation is called either “New York City Sprinklers” or “New York City Sprinkler System s Corp.” See Mem . Of Law at 8, n. 3. 2 On Novem ber 22, 20 0 8 a fire broke out in Trum bull’s Long Island City property, causing dam age (“the fire dam age”). Pl.’s R. 56.1 ¶¶ 7, 12. It is alleged that the sprinkler system installed by Odyssey failed to activate to extinguish the fire, Pl.’s R. 56.1 ¶¶ 7-8 & 14; Gaza Decl. Ex. B, C & E, although the reasons for that failure are in dispute. Shortly after the fire on Decem ber 3, 20 0 8, Trum bull sent a letter to Odyssey and Century, stating that Trum bull “fully intend to hold Odyssey Mechanical liable for all dam ages sustained as a result of the recent fire at the prem ises due to the m alfunctioning of the sprinkler system . By copy of this letter we are notifying your carrier of the aforesaid claim .” Pl.’s R. 56.1 ¶ 7; Gaza Decl. Ex. B. On Decem ber 9, 20 0 8, Francis Manfredi, an attorney acting for Tower, contacted Century by telephone and repeated the allegation that Odyssey installed a sprinkler system in the 37th Ave Building that did not function during the fire. Pl.’s R. 56.1 ¶ 8. Tower, as Trum bull’s insurer, claim s a right of subrogation against Odyssey. Answer to Am ended Com plaint, dated May 18, 20 0 9, ¶ 10 . Odyssey confirm ed that it had installed a sprinkler system at the building. Pl.’s R. 56.1 ¶ 9. Subsequently, both Century and Tower hired independent investigators to exam ine the cause of the fire. Pl.’s R. 56.1 ¶¶ 11-18; Gaza Decl. Ex. E & G. The investigation indicated that the fire was caused by sparks from a tenant’s welding torch. See Gaza Decl. Ex E & G. During the investigation, Odyssey produced an invoice it issued to Trum bull dated Septem ber 19, 20 0 6. Pl.’s R. 56.1 ¶ 16; Gaza Decl. Ex. G. The invoice stated “INSTALL & FURNISH SPRINKLER SYSTEM PER CODE.” Pl.’s R. 56.1 ¶ 16, Gaza Decl. Ex G. Odyssey also produced a subcontract between Odyssey and New 3 York City Sprinklers for the installation of sprinkler heads, dry valves, alarm valves, Siam ese connections, and necessary work perm its. Pl.’s R. 56.1 ¶ 17; Gaza Decl. Ex G. On March 11, 20 0 9, Century sent a letter to Odyssey in which Century stated that it would neither defend any claim nor cover any losses arising from the fire and Odyssey’s installation of the sprinkler system because the losses were not part of the “HVAC installation and repair work” covered under the Policy. Pl.’s R. 56.1 ¶¶ 19-20 ; Gaza Decl. Ex. H. On March 12, 20 0 9, Century filed this action seeking a declaratory judgm ent. No underlying action has been filed by Trum bull and Tower against Odyssey or Century. They therefore oppose the relief sought on the basis there is no case or controversy sufficient to confer jurisdiction on the Court. JU RISD ICTION Diversity of citizenship, which is not disputed, provides a basis for jurisdiction. See 28 U.S.C. § 1332(a)(1); Am ended Com plaint, dated March 19, 20 0 9, ¶ 4-6. The issue presented is whether the claim ed absence of a case or controversy deprives the Court of subject m atter jurisdiction. D ISCU SSION I. Stan d ard o f Re vie w “In determ ining a m otion for sum m ary judgm ent that is filed in the context of a declaratory judgm ent action, the sam e standard is applied as in any other action.” United States v. State of New York, 3 F. Supp. 2d 298, 30 7 (E.D.N.Y. 1998). Sum m ary judgm ent is appropriate “if the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits . . . show that there is no genuine issue as 4 to any m aterial fact and that the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 10 6 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). As an initial m atter, the m oving party has the burden of dem onstrating that no genuine issue of m aterial fact exists. Matsushita, 475 U.S. at 586. Once the m ovant points to the absence of an issue, the non-m oving party cannot “rest upon the m ere allegations or denials” in its pleadings but m ust produce evidence of a genuine issue of m aterial fact. See Fed R. Civ. P. 56(e). See also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 10 6 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Credibility assessm ents and choices between conflicting versions of events, when m aterial to the inquiry, are determ inations that the Court m ust leave for a jury. See Fischl v. Arm itage, 128 F.3d 50 , 55 (2d Cir. 1997). The Court is com pelled to draw all reasonable inferences in favor of the nonm oving party, Matsushita, 475 U.S. at 586, and a genuine issue exists if a reasonable jury could find in favor of the non-m oving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 10 6 S.Ct. 250 5, 2510 , 91 L.Ed.2d 20 2 (1986). II. D e clarato ry Re lie f In relevant part, the Declaratory J udgm ent Act (“DJ A”) provides that “any court of the United States . . . m ay declare the rights and other legal relations of any interested party seeking such a declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 220 1(a). However, actions for declaratory judgm ent still m ust m eet “case or controversy” requirem ents and the party seeking declaratory judgm ent has the burden to prove subject m atter jurisdiction. E.R. Suibb & Sons, Inc. v. Lloyd’s & Co., 241 F.3d 5 154, 177 (2d Cir. 20 11). A court cannot adjudicate conjectural or hypothetical cases or controversies. Lujan v. Defenders of Wildlife, 50 4 U.S. 555, 560 -61, 112 S. Ct. 2130 , 119 L.Ed.2d 351 (1992). “The disagreem ent . . . m ust have taken a fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on its adversaries, and som e useful purpose to be achieved in deciding them .” Pub. Serv. Com m ’n of Utah v. Wycoff Co., Inc., 344 U.S. 237, 244, 73 S.Ct. 236, 97 L.Ed. 291 (1952). The question to be asked is “whether the facts alleged, under all the circum stances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient im m ediacy and reality to warrant the issuance of a declaratory judgm ent.” Olin Corp. v. Consolidated Alum inum Corp., 5 F.3d 10 , 17 (2d Cir. 1993) (citing Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270 , 273, 61 S.Ct. 510 , 85 L.Ed. 826 (1941); Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 562 (2d Cir.), cert. denied, 50 1 U.S. 1218, 111 S.Ct. 2829, 115 L.Ed.2d 998 (1991)). “To m aintain jurisdiction for declaratory relief, plaintiffs m ust show that they m eet the above prerequisites at the tim e the case is heard.” U.S. Underwriters Ins. Co. v. Kum Gang Inc., 443 F. Supp. 2d 348, 352 (E.D.N.Y. 20 0 6) (citing Golden v. Zwickler, 394 U.S. 10 3, 10 8, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969)). The DJ A expressly confers discretion upon the district court to decide whether it will entertain jurisdiction. Apotex Inc. v. Sanofi-Synthelabo et. al., 386 F. Supp. 2d 549, 551 (S.D.N.Y. 20 0 5). When considering whether to exercise that discretion, the Second Circuit instructs district courts to consider: “(1) whether the judgm ent will serve a useful purpose in clarifying or settling the legal issues involved; and (2) whether a judgm ent would finalize the controversy and offer relief from uncertainty.” Duane Reade Inc. v. St 6 Paul Fire and Marine Ins. Co., 411 F.3d 384, 389 (2d Cir. 20 0 5) (citing Broadview Chem . Corp. v. Loctite Corp., 417 F.2d 998, 10 0 1 (2d Cir. 1969)). If either objective will be achieved, a failure to entertain the action would be an error. Broadview Chem . Corp., 417 F.2d at 10 0 1. III. Su bje ct Matte r Ju ris d ictio n As a threshold m atter, Defendant Tower argues that because it has not yet filed a lawsuit against Odyssey or Century, there is no justiciable case or controversy and this court lacks subject m atter jurisdiction. While Tower is correct that federal courts “generally decline to award declaratory relief in indem nification actions, especially before any underlying suit has been filed,” Solow Bldg. Co., LLC v. ATC Associates, Inc., 388 F. Supp. 2d 136 (E.D.N.Y. 20 0 5), the determ ination “[w]hether a real and im m ediate controversy exists in a particular case is a m atter of degree and m ust be determ ined on a case-by-case basis.” Kidder, Peabody & Co. Inc. v. Maxus Energy Corp., 925 F.2d 556, 562 (2d Cir. 1991). The absence of an underlying claim is not autom atically fatal to Century’s action. “That the liability m ay be contingent does not necessarily defeat jurisdiction of a declaratory judgm ent action. Rather courts should focus on the practical likelihood that the contingencies will occur.” Associated Indem . Corp. v. Fairchild Indus., Inc., 961 F.2d 32, 35 (2d cir. 1992). See also Millennium Capital Markets LLC v. U.S. Nat’l Leasing Corp., No. 97-cv-8397, 1999 WL 311923, at *6 (S.D.N.Y. May 13, 1999) (dism issing declaratory judgm ent claim but noting it could be renewed if injured parties “instituted or have threatened to institute legal action against plaintiffs”). 7 In opposing Century’s action for declaratory judgm ent, Tower relies upon two cases from this court denying declaratory judgm ent in indem nification actions, Charter Oak Fire Insurance Co. v. Bolding, No. 0 8-cv-0 2632, 20 0 9 WL 3246116 (E.D.N.Y. Oct. 1, 20 0 9) and Solow Bld. Co., LLC v. ATC Associates, Inc., 388 F. Supp. 2d 136 (E.D.N.Y. 20 0 5). However, the facts of those cases differ in critical respects from the facts of this case. In Solow, the plaintiff landlord sought indem nification from a tenant against any future tort claim s by any third party arising from the tenant’s asbestos abatem ent work. 388 F.Supp 2d. at 137. After m ore than three years of discovery, no injured third party had been identified and the court noted that even if an injured party were identified, there would be no legal basis for a claim against the plaintiffs. Id. at 140 . Therefore, the court found it lacked subject m atter jurisdiction, based on the fact that “[t]here is no underlying lawsuit, no threat of a suit, and no indication so far that anyone was even injured.” 388 F.Supp 2d. at 139. Sim ilarly, in Charter Oak Fire Insurance Co., the injured party never contacted the insurance com pany, filed no claim , filed no lawsuit, and m ade no opposition to Charter Oak’s declaratory judgm ent action. 20 0 9 WL 3246116, at *2. Based on the lack of adverse legal interests, the court dism issed for lack of subject m atter jurisdiction. Id. at *4-5. Here, Trum bull placed Odyssey and Century on notice of claim for the fire dam age, prem ised on Odyssey’s installation of the sprinkler system . Pl.’s R. 56.1 ¶ 7; Gaza Decl. Ex. B. This claim was repeated by Tower via telephone. Pl.’s R. 56.1 ¶ 8. These com m unications clearly constituted a “claim ,” as defined in the Policy. See Gaza Decl. Ex. A.II, § VI(4) (“‘Claim ’ m eans a dem and against any insured seeking a rem edy and alleging liability or responsibility on the part of any insured for com pensatory 8 dam ages.”). The Policy not only obliges Century to bear the costs of defending against litigation but also obliges Century to bear the costs of any investigation or settlem ent of a claim . See Gaza Decl. Ex. A at 9. (“We will pay, with respect to any ‘claim ’ we investigate or settle . . . all expenses we incur.”). Based on Century’s com m unication to Odyssey on Decem ber 11, 20 0 8, it is clear that Century took these claim s seriously. See Gaza Decl. Ex. D. Century im m ediately hired experts to investigate the fire and prepare reports on the circum stances, cause, and origin of the fire dam age. Pl.’s R. 56.1 ¶ 11-19. The defendants have not abandoned their claim against Odyssey and Tower opposes Century’s m otion for sum m ary judgm ent. In light of all these facts, the parties are clearly adverse and Century’s duty to defend is sufficiently im m ediate and real to confer subject m atter jurisdiction upon this Court. Additionally, judgm ent would serve the objective set out in Duane Reade of “offer[ing] relief from uncertainty” to Century regarding its ongoing liability for Tower’s claim . 411 F.3d at 389. IV. Liability U n d e r th e Po licy Century seeks a judgm ent that it is not obliged to defend or indem nify Odyssey on the basis that: 1) all of the defendants’ claim s are derived from Odyssey’s work installing a sprinkler system and; 2) as a m atter of law, the installation of a sprinkler system is beyond the scope of the Policy. The Court begins by exam ining whether Century has established that the claim s are derived from work on the sprinkler system before turning to the scope of the Policy. 9 A. Odyssey’s Work at the 37th Avenue Building Even drawing all reasonable inferences in favor of the defendants, Century has m et its burden of establishing that the defendants’ claim s are derived from Odyssey’s installation of a sprinkler system at the 37th Ave Building. This is the only basis for liability set out in the defendants’ claim letter and telephone call and the sole basis for liability contained in the investigators’ reports. The invoices and other evidence Odyssey produced to Century establish that only sprinkler work was perform ed at the 37th Avenue Building. Although Tower speculates in its m em orandum of law that there m ight be unknown theories of liability against Odyssey that m ight fall within the insurance policy, Tower presents no evidence that Odyssey ever perform ed any work at the 37th Ave Building, other than installing a sprinkler system . A sum m ary judgm ent m otion cannot be defeated on the basis of “conjecture or surm ise.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also Matsushita, 475 U.S. at 586 (“When the m oving party has carried its burden under Rule 56(c), its opponent m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts.” (citation om itted)); Fed. R. Civ. P. 56(e) (“an adverse party m ay not rest upon the m ere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, m ust set forth specific facts showing that there is a genuine issue for trial.”). “Proof of negligence in the air, so to speak, will not do.” Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 341, 162 N.E. 99, 99 (N.Y. 1928) (quoting Frederick Pollock, The Law of Torts 455 (11th ed.1920 )). B. Scope of the Policy 10 The parties do not dispute that New York law applies to the Policy. “The New York approach to the interpretation of contracts of insurance is ‘to give effect to the intent of the parties as expressed in the clear language of the contract.’ Mount Vernon Fire Ins. Co. v. Belize N.Y., 277 F.3d 232, 236 (2d Cir. 20 0 2) (quoting Vill. of Sylvan Beach, N.Y. v. Travelers Indem . Co., 55 F.3d 114, 115 (2d Cir. 1995)). “Unam biguous term s are to be given their plain and ordinary m eaning, and am biguous language should be construed in accordance with the reasonable expectations of the insured when he entered into the contract.” McCarthy v. Am . Int’l. Group., Inc., 283 F.3d 121 (2d Cir. 20 0 2). The policy contained an endorsem ent and an exclusion, both of which are relevant to the determ ination of whether the Policy applies to the installation of a sprinkler system . Where a policy contains an endorsem ent, “[u]nder New York law, an endorsem ent m ust be read in conjunction with the entire policy, and the words of the policy rem ain in full force and effect except as m odified by the endorsem ent.” U.S. Underwriters, 443 F. Supp. 2d at 356 (citing Cty of Colum bia v. Cont’l Ins. Co., 83 N.Y.2d 618, 628, 612 N.Y.S.2d 345, 634 N.E.2d 946 (1994)). Sim ilarly, it is well-settled that “exclusions from insurance policy coverage are given strict construction.” Kim m ins Indus. Serv. Corp. v. Reliance Ins. Co., 19 F.3d 78, 81 (2d Cir. 1994). See also Critchlow v. First UNUM Life Ins. Co. of Am erica, 378 F.3d 246 (2d Cir. 20 0 4); State of New York v. Blank, 27 F.3d 783 (2d Cir. 1994). Policy exclusions are interpreted in a m anner m ost beneficial to the insured. MH Lipiner & Son, Inc. v. Hanover Ins. Co., 869 F.2d 685, 687 (2d Cir. 1989); see also Miller v. Cont’l Ins. Co., 40 N.Y.2d 675, 678, 389 N.Y.S.2d 565 (1976) (“New York follows the “hornbook 11 rule that policies of insurance . . . are to be liberally construed in favor of the insured.”). “The insurer bears the burden of proving that the exclusion applies, that it is stated in clear and unm istakable language, and is subject to no other reasonable interpretation.” U.S. Underwriters, 443 F.Supp.2d at 356 (citing Cont’l Cas. Co. v. Rapid-Am erican Corp., 80 N.Y.2d 640 , 652, 593 N.Y.S.2d 966, 60 9 N.E.2d 50 6 (1993)). By the term s of the Policy, Century agreed to defend and indem nify Odyssey against claim s for bodily injury or property dam age “to which this insurance applies.” See Gaza Decl. Ex. A, § I(1)(a). The Policy applies “only if the ‘bodily injury’ and ‘property dam age’ arises out of ‘specifically covered operations’. . . .” Gaza Decl. Ex A., § I(1)(b). “Specifically covered operations” is defined in a “Specifically Covered Operations Endorsem ent,” which states: The following work and operations are included within the definition of “specifically covered operations”: CONTRACTOR DOING HVAC INSTALLATION AND REPAIR WORK Coverage for classifications, operations, or prem ises n o t shown above can only be covered if agreed to, in writing, by us as evidence by endorsem ent to this policy. Gaza Decl. Ex. A.II (em phasis in original). The Policy “Exclusions” repeats this lim itation: “This insurance does not apply to: . . . . ‘Bodily injury’ or ‘property dam age’ included in the ‘products-com pleted operations hazard’ and arising out of or resulting from any work or operations other than those necessary and incidental to your ‘specifically covered operations.’” Gaza Decl. Ex. A at § (2)(bb). “Products-com pleted operations hazard” referred to injury or dam age 12 occurring away from the policy-holder’s prem ises. Id. Based on the endorsem ent and the exclusions, it is clear and unam biguous that the policy excluded work which was not “necessary and incidental” to the work of installing and repairing heating, ventilation, and air conditioning system s. No reasonable person could conclude that the installation of a building-wide sprinkler system , designed to extinguish fires, qualifies as heating and air-conditioning installation and repair work or that a sprinkler system is “incidental” to that work. Not only are these distinctly different and unrelated system s within a building, but the work is qualitatively different. The failure of fire-safety equipm ent carries risks that the failure of air conditioning does not. “The duty to defend arises whenever the allegations . . . fall within the scope of the risks undertaken . . . regardless of how false or groundless those allegations m ight be.” Stonewall Ins. Co. v. Nat’l Gypsum Co., No. 86 Civ. 9671, 1992 WL 123144, at *6 (S.D.N.Y. May 27, 1992) (quoting Seabord Sur. Co. v. Gillette Co., 64 N.Y .2d 30 4, 310 (1984) (citations om itted)). Only where the prom isor can prove as a m atter of law that the claim ed injury is excluded by the contract will the duty to defend be abrogated.” Travelers Prop. Cas. Corp. v. Winterthur Int’l., No. 0 2 Civ. 240 6, 20 0 2 WL 1391920 , at *6 (S.D.N.Y. J une 25, 20 0 2) (citing Physicians’ Reciprocal Insurers v. Loeb, 738 N.Y.S.2d 68, 70 (2d Dept. 20 0 2). “In contrast to the duty to defend, the duty to indem nify turns not on the allegations of the com plaint but on the actual liabilities as borne out by the facts.” Id. at *6 (citing Stonewall, 1992 WL 123144, at *8). All the evidence is patently clear that Odyssey’s work at the 37th Avenue Building was lim ited solely to installing the sprinkler system . Despite having two years in which to conduct an investigation and discovery, defendants present no evidence to the 13 contrary. The probability that there will be further developm ent of the facts regarding the nature of Odyssey’s work is rem ote. As already discussed, any liability arising from installation of the sprinkler system is beyond the scope of the Policy. Consequently, Century has no duty to defend or indem nify Odyssey against any claim s arising from the fire dam age. CON CLU SION The claim of liability against Century is neither conjectural nor hypothetical; the controversy is not fanciful. The judgm ent will serve the useful purpose of settling the legal issue involved and will relieve Century, the plaintiff, from uncertainty. To fail to exercise discretion to entertain jurisdiction would be an error. Broadview Chem . Corp., 417 F.2d at 10 0 1. For the foregoing reasons, sum m ary judgm ent is granted and a judgm ent entered, declaring that Century owes no duty under the Policy to defend or indem nify Odyssey with regard to any claim against Odyssey arising from the fire dam age. SO ORD ERED . Dated: Brooklyn, New York Septem ber 27, 20 11 _ / s/ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I. Leo Glasser, U.S.D.J . 14

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