Delos Ins. Co. v Citywide Home Bldg. Corp.

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Delos Ins. Co. v Citywide Home Bldg. Corp. 2012 NY Slip Op 31731(U) June 4, 2012 Sup Ct, New York County Docket Number: 110966/2010 Judge: Lucy Billings 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. ANNED ON 71212012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY LUCY BlkLlNGS PRESENT: n PART 46 Index Number : 110966/2010 INDEX NO. DELOS INSURANCE COMPANY vs. CINWIDE HOME BUILDINGS CORP. MOTION DATE MOTION SEQ. NO. SEQUENCE NUMBER : 001 MOTION CAL. NO. DEFAULT J UDGMENT thler motlon tolfor PAPFP$ NUMBFPED Notlce of Motion/ Order to Show Cause - Affldavits - Exhiblts ... I Answerlng Affidavits - Exhiblta z Replying Affldaviter 3 Cross-Motion: 0 Yes No FILED NEW YORK COUNTY CLERK'S OFFICE 0 FINAL DISPOSITION NON-FINAL'~l~POSITION u REFERENCE Check if appropriate: 0 DO NOT POST n SETTLE ORDER/ JUDG. 0 SUBMIT ORDER/ JUDG. Check one: .. . ... - - [* 2] DELOS INSURANCE COMPANY f/k/a SIRIUS AMERICA INSURANCE COMPANY, Index No. 110966/2010 Plaintiff - against DECISIQN AND ORDER - CITYWIDE HOME BUILDING CORP., VISTAMAR COMPLEX LTD., and LB NORTHEAST DEVELOPERS, L T D . , FILED Defendants LUCY BILLINGS, J.: 1. BACKGROUND NEW YORK COUNTY CLERK'S O F W E Plaintiff moves for a default judgment against plaintiff's insured, defendant Citywide Home Building Corp., declaring that plaintiff is not obligated to defend or indemnify Citywide Home Building in an action by defendant Vistamar Complex Ltd. against the insured, Vistamar-ComDLex Ltd, v. C i t wid.e H o m e Buildinq Corp, Index No. 1 6 6 2 9 / 2 0 0 6 3215, 3001. (Sup. Ct. Bronx Co.). C.P.L.R. § § Plaintiff claims it validly disclaimed coverage under its policy issued to Citywide Home Building, on the ground that the insured willfully failed to cooperate in t h e defense of Vistamar Complex's action, according to the policy's conditions of coverage. Even assuming plaintiff's service of its ~lurnmonsand complaint on Citywide Home Building was adequate, plaintiff has not shown, in the first instance, that its policy imposed a condition of cooperation. Further assuming that the policy did delosins.l40 1 [* 3] impose such a condition, however, for the reasons explained below, plaintiff still has not met its heavy burden to show i t s insured's willful noncooperation and thus a valid disclaimer. 11. STANDARD FOR A DEFAULT JUDGMENT To obtain a default judgment against the non-answering defendant Citywide Home Building, plaintiff muBt support its motion with evidence of the facts constituting its claim. C.P.L.R. 5 3215(f); Woodson v . Mendon Leasinq C o r n . , 100 N.Y.2d 62, 70 (2003). An affidavit, a personally verified complaint, or other admissible evidence establishing a viable claim satisfies this requirement. Wileon v . Gal icia Contr. 10 N.Y.3d 8 2 7 , & Reat oration C o r y ) . , 830 (2008); WoodBon v. Mendon Leasinq Corp., 100 N.Y.2d at 71; Meiia-Ortiz v. Inoa, 71 A.D.3d 517 (1st Dep't 2010); A1 Fayed v. Barak, 39 A.D.3d 3 7 1 , 3 7 2 (1st Dep't 2 0 0 7 ) . 111, THE POLICY REOUIREMENTS Plaintiff insurer bears the burden to prove an adequate factual foundation f o r a disclaimer based on willful noncooperation, as it penalizes an injured party for a potentially liable party's uncooperative conduct, over which the injured party has no control, and fruetrates the law's purpose to afford compensation f o r injuries caused by unlawful acts. YQrk (2 nt. Mut. Fire In@, C 0 . v. SalQmon, 11 A.D.3d 315, 316 (1st Dep't 2004). 271-72 879, (1st Dep't 880 Rucaj v. ProqreeBive Ins. Co., 19 A.D.3d 2 7 0 , 2005); Eaqle I n s . Co. v. Villeqas, 307 A.D.2d (1st Dep't 2003); New Y o r k Cent. Mut. Fire Ins. Co, v. Bresil, 7 A.D.3d 7 1 6 ( 2 d Dep't 2 0 0 4 ) ; New York S t a t e I n s . Fund. delosins.140 - .. . 2 [* 4] v. Merchants Ins. Co, of N.H., 5 A.D.3d 449, 450-51 (2d Dep't 2004). Plaintiff must establish that (1) it acted diligently in seeking to secure its insured's cooperation; ( 2 ) its efforts were reasonably calculated to achieve that end; and (3) the insured deliberately failed to cooperate, with an attitude of Ilwillful and avowed obstruction." Hunter Roberts Constr. Group, LLC v. Arch Ins. Co., 75 A.D.3d 404, 410 (1st Dep't 2010); C i t v York v. Contipental Cas. C o t , Qf New 27 A.D.3d 28, 3 2 (1st Dep't 2005); Rucai v. Proqreasive Ips . Co., 19 A.D.3d at 271; New York Cent, Mut. F i r e Ins. Co. v, Salomon, 11 A.D.3d at 316. Most fundamentally, part of plaintiff's burden to prove an adequate factual foundation for a disclaimer based on willful noncooperation is to establish that the insured policyholder violated plaintiff's policy provisions. The policy violation plaintiff urges is the insured's willful failure to cooperate with plaintiff's defense of Vistamar Complex's litigation against the insured. The source of any condition that persons seeking coverage cooperate is, of course, the applicable insurance policy. Although plaintiff admits that it insured Citywide Home Building, and the other parties have not disputed that fact, they have not admitted or stipulated to any policy provisions. Because no party has preeented plaintiff's policy, plaintiff thus fails to show that the policy issued to Citywide Home Building imposed any duties on it following a claim against it. AIU Ins. Co . v. Rodriquez, 303 A.D.2d 181, 182 (1st Dep't 2003); New York Cent. delosins.140 3 [* 5] Mut, Fire Ins. Co. v. Marcksi, 238 A.D.2d 135 (1st Dep't 1997); f i l l s t a t e Ins. Co. v , Ganesh, 8 Misc. 3d 922, 923 (Sup. Ct. Bronx Co. 2005). See BP A . C . CQTB. v. O p e B e a c w Ins. Group , 8 N . Y . 3 d 708, 716 (2007); De Oleo v . Charis Christiap Ministries, Inc,, 94 A.D.3d 541, 542 (1st Dep't 2012); Wonq v. Wonq, 86 A.D.3d 439, 440 (1st Dep't 2011); Colburn v. ISS Intl. Serv, S v s . , 304 A.D.2d 369 (1st Dep't 2003) * Without the insurance contract itself, any recitation of the contract's terms through an affidavit or other documents is rank hearsay and contrary to the best evidence rule. P e o p l e v. Joseph, 86 N.Y.2d 565, 570 (1995); SChozer v. William Penn Life J n s . Co. of N . Y , , 84 N . Y . 2 d 639, 643 (1994); N Liauidatins Corp. W v . Helmslev-Spear, Inc., 248 A.D.2d 304, 305 ( l e t Dep't 1998); Schiffren v. K r a V e r, 225 A.D.2d 757, 758 (2d Dep't 1996). See Browp v. Rosedale Nurseries, 259 A.D.2d 256, 257 (1st Dep't 1999). Consequently, the abaence of plaintiff's insurance policy, as a threshold point, prevents any finding that the disclaimer under that policy, based on a violation of policy conditions, is valid. AIU IPS . Co. v. Rodriquez, 303 A.D.2d at 182; Colburn v. ISS Intl. Serv. S y a , , S ; J J ~ , Co. v. 304 A.D.2d 369; AllBtate Ganesh, 8 Misc. 3d at 924. See Molean v. Kreialer Borq FlQrman Gen. Coqatr. C Q , , 304 A.D.2d 3 3 7 , 338-39 (1st Dep't 2003). deloeine.140 4 . . [* 6] IV. NONCOOPERATION A. plaintiff's Evidence Reqardinq Its Efforts Toward Citywide Home Buildins's CoQneratioq Robert Angotta, a claims representative f o r plaintiff's claims administrator, attests that a co-worker initially wrote a letter to Peter Kaywood at Citywide Home Building May 3, 2 0 0 7 . Angotta does not indicate whether he even worked for plaintiff's or other transmittal of this letter, In any event, the letter advises the insured of its obligation to cooperate in the defense of Vistamar Complex's litigation, requesta the insured to telephone the defense attorney and provides his telephone number, and further advises that, if "we do not hear" from the insured in 10 days, plaintiff would deny coverage. A f f . of Regis E. Staley Jr. Ex. D, at 2. No evidence indicates Peter Kaywood's. capacity, if any, at Citywide Home Building. Plaintiff shows no further attempt to contact Citywide Home Building until at least late 2009. In Angotta's letter to Peter Kaywood at Citywide Home Building January 6 , 2010, Angotta presents his hearsay account of an investigator's recent visit to the insured's business, where, via an intercom, "Robert" referred the investigator to "Amanda1' a specified telephone number, at where the inveetigator left meesages. I . Ex. d, E, at 1. No evidence indicates the content of the messages or whether plaintiff ever attempted to find out Amanda's full name, her address, or her capacity in relation to Citywide Home Building, l e t alone whether plaintiff ever attempted to visit the person delosins.l40 5 [* 7] identified. N o r does any evidence indicate whether I'Robert," with whom the investigator first communicated at Citywide Home Building's premises, was asaociated with t h e insured. Angotta's letter of January 6, 2010, further advises of the obligation to cooperate and t h e forthcoming disclaimer absent the insured cooperation within 10 days. B. Citywide Home Buildinq's Willful N o n ~ o o eratiw p Plaintiff's representatives never returned to the premises that the investigator visited to seek out a Citywide Home Building officer or employee or to determine whether the address was in fact the insured's place of business. Hence plaintiff issued its disclaimer without any personal, direct oral communication with or personal visit to an officer or employee of T the insured. Hunter Roberts Conetr. Group, LLC v. Arch Ins. Co . I 75 A.D.3d at 410. Having failed in each of these respects, plaintiff may not rely on only messages and mailings, particularly with no assurances that its address for Citywide Home Building was the insured's place of business or even the address of anyone associated with the insured or that any such person received either the messages or the mailings. New Yprk Cent. Mvt, Fire Ins. Co. v. Salomon, 11 A.D.3d at 317-18. State Farm Fire Cas. Co. v. Imeri, 182 A.D.2d 683, 684 (2d Dep't 1992). & In fact, without evidence of Kaywood'B capacity, the court may not conclude that plaintiff ever communicated at all with its insured before its disclaimer. See Utica F i r g t I n s . Co. v. Arken, I n c . , delosine.140 6 [* 8] 18 A.D.3d 644, 645 (2d Dep t 2005). Even accepting the full parameters of the communications to which Angotta attests, however, they fall short of diligent actions reasonably calculated to obtain the intended recipient s cooperation and therefore fail to demonstrate ita deliberate noncooperation. Hunter Roberts Constr. GrQup, LLC v. Arch Ing.. Co., 75 A.D.3d at 411; New York Cent, Mut. Fire Ins. Co . v . Salomon, 11 A.D.3d at 317-18; New York Cent. Mut. Fire Ins. Co. v. Breeil, 7 A.D.3d at 717. At best, plaintiff has shown the insured s inaction in response to letters or messages. Inaction is not enough. City of New York v. Continental Cas, Co., 27 A.D.3d at 32; New York Cent. Mut. Fire Ins. Co. v , Salomon, 11 A.D.3d at 316; New York z t a t e Ins. Fund v. Mprchante Ins. Co. of N.H., 5 A.D.3d at 451. Aside from the one unannounced and hence unproductive visit to the address of Citywide Home Building s premises, plaintiff made no visits to the insured s known addresses, to ascertain whether an officer or employee of the inaured actually worked or reaided there, or attempts to communicate with other sources, to verify or ascertain addresses or otherwise reach the i n s u r e d . Hunter Roberts Constr. Group, LLC v. Arch Ins. Co., 75 A.D.3d at 410; Rucaj v. Proqreseive Ins. Co., 19 A.D.3d at 272; New YQrk Cent. Mut. Fire Ins. Co, v. SalOmon, 11 A.D.3d at 316-17; New York Cent. Mut. Fire I n s . Farm Fire & Co. v. Bresil, 7 A.D.3d a t 717. See State Cas. Co . v. Imeri, 182 A.D.2d at 684. In fact, nothing indicates the insured ever received a dclosins.140 7 [* 9] single written communication from plaintiff before its . Fire Lns. Co. v. Salomon, 11 disclaimer. New York Cent.. A.D.3d at 317-18. State Farm Indem. Cs. v. Moore, 58 A.D.3d 429, 431 (1st Dep't 2009); Stgte Farm Fire 182 A.D.2d at 684. & Cas. Co, v. Imeri, I t s failure to make any effort beyond the aingle visit, messages, and letters to unverified locations does not warrant a disclaimer of insurance coverage based on willful noncooperation. Hunter Roberts COPS tr. Group, LLC v. Arckt Ins. Cot 75 A.D.3d a t 410; Rucai v . proqressive Ins. Co., a t 272; 1 9 A.D.3d New York Cent. Mut. Fire Ina. C Q . v. SalomQn, 11 A.D.3d at 318; New York Cent. Mut, Fire Ins. Co . v. Bresil, 7 A.D.3d at 717. See State Farm Indem. Co. v. Moore, 58 A.D.3d at 431; State Farm F i r e V. f; r a a , Co . v . Ime ri, 1 8 2 A.D.2d a t 6 8 4 . CONCLUSION From the bare facts presented, plaintiff h a s shown neither diligent efforts calculated to secure its insured's cooperation, nor the insured's willful and avowed obstruction, after plaintiff sought the insured's cooperation. Moreover, even if plaintiff showed its grounds for a disclaimer to the extent that Citywide Home Building willfully failed to cooperate with plaintiff'a defense of Vistamar's litigation, plaintiff has failed to show that the policy plaintiff issued to Citywide Home Building in fact required it to cooperate in t h e insurer's defense of litigation against the insured. For all the above reasons, the court denies plaintiff's motion for a default judgment declaring that plaintiff is not delosins.140 8 [* 10] obligated to defend or indemnify Citywide Home Building in Vistamar Complex Ltd. v , Citywide Home Buildinq Corp, Index No. 16629/2006 ( S u p . . Ct. Bronx C o . ) . C.P.L.R. §§ 3215(f), 3001. This decision constitutes the court s order. DATED: June 4, 2012 Lfl-hLUCY BILLINGS, J.S.C. BILLINGS J.S.C. JUL 02 2012 NEW YORK COUNTY CLERKS OFFICE delosins.140 9

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