City of New York v National Fire Ins. Co. of Hartford & Gandhi Eng'g, Inc.

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City of New York v National Fire Ins. Co. of Hartford & Gandhi Eng'g, Inc. 2012 NY Slip Op 32359(U) September 7, 2012 Supreme Court, New York County Docket Number: 114478/2011 Judge: Judith J. Gische 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] SUPREmE COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART P Ind&"i;rurnter : 114478/2011 CITY OF NEW YORK vs. NATIONAL FIRE INSURANCE SEQUENCE NUMBER : 001 Upon the fwsgohg paps,It b odered Mat thh mown k I Dated: 1. CHECK ONE: ...Y..Y.....................................,.... ".,-,.",,,..,.,.0CASE DfW08ED 2. CHECK As APPROPRIATE: 3. CHCCK IF APPROPRIATE: ..............,.. ..........MOTDN k3: ................................................ UGRANTtD NAL DWPOSITION *' 0OTHER OENleD BeTTlE ORDER 0DQ NOT POST - aSUBMIT ORDER 0FlwclARY APPOINTMENT m-REFERENCE [* 2] OF N W YQRK E COUNTY NEW OF YORK:IAS PART 10 SUPREME COURT OF THE STATE X ----**-*-___---____"*"--------------- DECISIWORDER Index No.: 114478-2011 s8q. NO.: 001 The City of New Yo&, Plaintiff (s), PRESENT: -against- n. Juah J, GI$* J.S.C. Natlonal Fire Insurance Company of Hartford and Gandhl Engineering, Inc., FILED Defendant (9). X _ _ _ l l l l l l l _ _ l l _ l l _ L L I I _ - Recitation, as required by CPLR Q 2219 [a] of the papers consi$matm1;8view of this (these) motion(s): NEW YORK Papers COUNTY m e r e d National Fire nlm (53211) w/LS affirm (sep back), exhs . . . . . . . . . . . . . . . . . . . . . . . . 1 , 2 c m City opp wlDJ affirm, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cityxlmw/DJaffirm,axhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . National Fire reply/further support w/LS afflrm, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . City replylfurther support w/DJ affirm, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4 5 6 Upon the foregoing papers, the decision and order o the mud is 8s follows: f GISCHE J.: This is an action by The City of New York ("City") for a declaratory judgment that It is entitled to defense and indemnification in an underlying personal injury action (Jatkowski v, The itv of New Yo& et al, Supreme Ct., N.Y. Co. Index No.: 111495108) ("personal injury action"). The personal injury action is also assigned to this court. The City has commenced a third party action (T.P. Index No. 690583/10) against Gandhi Engineering, Inc. ("Gandhi") ("2010 third party action')). Gandhl, a named defendant in this action, is the insured of defendant National Fire Insurance Company of Hartford ("National Fire"). National Fire has appeared on its own behalf. Counsel for National -Page Iof 8 [* 3] Fire has not appeared on behalf of Gandhi nor has Gandhi taken any position on the relief sought. National Fire now moves for the pre-answer dismissal of this action against its insured on the basis that this actlon seeks the same relief as the third party complaint in the personal injury action, it has documentary evidence disproving the City's claims, and failure to state a cause of action (CPLR 321 1 [a][4], [I] [7]). and After this motion was brought, National Fire sewed a Notice to Admit dated June 11, 2012. The City has cross moved to strike Request No. 1 of the, Notice to Admit. That motion i opposed. s Arguments Jatkowski claims to have been injured when he fell o f a ladder while working on a f construction project at 2 Lafayette Street, New York, New York ("premises"). The premises are a City owned building and Jatkowskl has commenced a negligence action against the City, alleging violations of Labor Law 55 200, 240 [I] 241 [SI.Pursuant to and a contract dated December 6, 2005, Gandhl was hired by the City to perform "project management services" at premiaes ("Gandhi'a contract"), The City has commenced a third party action against Gandhi for contribution, indemnification (common law and contract) and breach of contract (failure to procure insurance). In this action, the City seeks a declaration that it is entitled to defense and indemnification in the personal injury action on the basis that it qualfies as an additional cause of action). The second cause insured under Gandhi's policy with National Fire (lst of action is against Gandhi for breach of contract (failure to procure Insurance). Although National Fire is not a named defendant in the 2010 third party action, National Fire nonetheless argues that this action seeks relief identical to the 2010 third -Page 2 of 8- [* 4] party action and should be dismissed for that reason. National Fire also argues that the claims the City has asserted against it in this action for a declaratory judgment have no merit, based upon the terms of Gandhi's contract with the City and the insurance policy Gandhl obtained. National Fire daima that Gandhl i only obligated to obtaln insurance for claims against it "arising out of activities s performed by or on behalf of' its insured. Gandhi was hired to perform consulting services and conduct "the necessary and usual construction inspection services" at the premises. Thus, National Fire argues that under Gandhi's contract, Gandhi was not required to name the City a5 an additional Insured on its professional liability policy and, if the claims agalnst the City arise from Gandhi's construction management services, the City i not an additional named insured under the policy endorsement excluding s "Construction Management - Errors and Omissions & Construction and Demolition Work." Section 6.3 of Gandhi's contract sets forth the minimum scope of insurance Gandhi was required to procure and maintain. Among those requirements are Comprehensive General Liabillty and Broad Form Comprehensive General Liability Insurance (Gandhi Contract § 6.3.1 [a]) and Professional Liability Insurance (Gandhi Contract 5 6.3.1[e]). DEscusslon Regardless of which subsection of CPLR 5 321l[aJa motion to dismiss is brought under, the court must accept the f m t s alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshan v. M u t u L l f e Ins, Go, Qf N.Y., 98 -Page 3 of 8- [* 5] N.Y.2d 314, 326 [ZOOZ]; Leon v. Martin=, 84 N.Y.2d 83,87 [1994]; Plaza PH2001 LLC v. Plaza Residential Owner LP, 98 A.D.3d 89 [la 20121). Since the sufficiency of the Dept. pleadlngs are being attacked, the plaintiff may provide sworn affidavits to remedy any defects in the complaint and preserve a possibly inartful pleading that may contain a potentially meritorious clalm, (Cron v. H a r m Fabr l w . Inc., 91 N.Y.2d 362 [1998]). The facts submitted in those submissions in opposition to defendant s motion are also accepted a6 true ($1 1 Weat 232nd Owners Cwa. \I, Jennifer Ream Go, ,98N.Y.2d 144 [2002]). National Fire has not met Its burden of showing that there is a prlor action pending for the same relief sought by the City in this case. Although the causes of action in this action and the 3mparty action arise from Jatkowski s accident in a City owned building, there is no identity of parties in the two actions, the relief is not the same and there i s good reason to maintain the separate existence of these actions ( Inc. v, Licciane, 37 NY2d 899 [1975]; Mornulas v. +I. Yudell Realty. inc., 161 A.D.2d 211 [lat 19901). Whereas the third party action is based upon Gandhi s contract and the Dept City seeks defense and indemnification by Gandhi, here the City seeks a declaration in its favor against Gandhi s insurance company which has denied Is notice of claim as an t additional insured (see Letter denying claim dated 8119/10). Apparently acknowledging that the breach of contract claim In this action and in the 2010 third party action are Indistinguishable, if not identical, the City has voluntarily agreed to withdraw that claim and all other claims against Gandhi in the action at bar. Since there is no opposition to the City withdrawing its claims against Gandhi, that branch of National Fire s motion to dismiss the claims against Gandhi is now academic and, -Page 4 of 8- [* 6] therefore, denied as moot. s Where a defense i founded on documentary evidence, the documents relied on must establish a defense to the claims assertd, a8 a matter of faw (See I e m v m, 84 NY2d 83 at 87) and conclusively dispose of the challenged pleading m h Fucha i c .. . mise8 v. American Civil Libertien Union F o u n m n . Inc;., 95 A.D.3d 558,588 [la' Oept 20121 citing Forftis Fin. Sews., LLC v Fimat Futures USA. Inc, 290 AD2d 383,383 [lnt20021). National Fire relies on Gandhi's contract with the Clty and its insurance Dept policy. These documents do not resolve all factual issues in the case, as a matter of law, nor do they conclusively dispose of the plalntiffs claims mh Fuchs Enternrises v, c Amer'mn civil Liberties Unlon Foundation, inc., supra). "Documentary evidence," for I purposes of a motion to dismiss, includes judicial records, documents reflecting out of court transactions, such as mortgages, deeds, leases and contracts, the contents of which are undeniable Forffis Fin, Servs..J&C v F W Futures USA, InE., supra at 84-85. The insurance policy and contract are, however, not being offered as proof of what they state. National Fire is arguing facts which, they claim when applied to the contracts, mandate the dismissal of this action. There is, therefore, a significant dispute about what services Gandhi was petforming at the job site. Consequently, National Fire has not proved this action should be dismissed based upon documentary evidence. The motion to dismiss for failure to state a cause of action (CPLR 321 1[a][7]) relies on similar arguments to those raised in connection with National Fire's motion to dismiss on documentary evidence. The motion must be denied if from the pleadings' four corners "factual allegations are discerned which taken together manifest any cause of action cagnlzable at law" (511 West 232nd Ownera Corp. v. Jennifer Redb Co. I supra at 152 -Pag0 5 of 8- [* 7] citing Guqqenheimer v. Gin3buU, supra at 275). The only distinguishing argument is that the complaint does not contain certain key words or allegations to the effect that the Crty is an additional insumd because the underlylng personal injury action arose or arises out OP Gandhi s operations/work for the City. Examining the City s complaint , it states at paragraph 14 that GGandhiagreed to perform certain work at 2 Lafayette Street, 11 floor, New York, New York, the project site. The terms and conditions of the Gandhi contract required Gandhi to procure commercial general liability insurance adding The City of New York as an Additional Insured . , , Paragraph 16 states that The City of New York qualifies as an Additional Insured on the said policy issued by National Fire to Gandhi. Paragraph 17 adds that Jatkowski commenced the personal injury action against the Crty and paragraph 19 states that the National Fire policy issued to Qandhi is applicable to each and every aspect of the claims made in the Jatkowski Action concernlng the allegation of personal injuries on September 4, 2007. Paragraph 20 summarizes the relief sought by the City, which is for National Fire to assume its defense and indemnification. Accepting the facts alleged in the pleading as true, according the plaintiff the benefit af every possible inference, the facts, as alleged, state a justiciable dispute against Gandhi s insurer. No particular words are required in a complaint where the plaintiff is alleging rights as an additional insured. Therefore, National Fire s motion for the dismissal of this action for fallure to state a claim must be denled as well. The complaint is stapled upside down and National Fire s reply is printed double sided. Both submisslons were accepted, despite the considerable inconvenience to the court. [* 8] The cross motion by the City involves the Notice to Admit that National Fire served after it moved to dlsmiss. CPLR 3123 provides that any time after service of the answer or after the expiration of twenty (20) days after service of the summons, whichever i s sooner, B party may serve upon any other party a N o t b to Admit. The Notice to Admit is a written request for admission by the latter party of the genuineness of any papers or documents or the correctness or fairness of things such as photographs. It is used to request admissions of fact where there could be no substantial dispute at trial (Kimrnel v. Paul Weiss et al,, 214 AD2d 453 [lmt 19951). A Notice to Admit is not a discovefy Dept device nor should it be used to seek admiasions that "go to the heart of the matter," or that are contrary to the party's previous pleadings (Mosreale v. Serrano, 67 A,D.3d 655 [2nd Dept 20091). Here National Fire seeks an admission that the contract it provides as an exhibit to the Notice is "complete." Not only Is there a disagreement about the completeness of the contract, the contract and its terms are central to the parties' dispute in this action. Given the City's oppoaition to the motion to dismiss, service of the Notlce was ill-timed and could hardly have been expected to elicit an admission by the City resolving any disputed issue in National Fire's favor. Since the admission both goes to the heart of the parties' dlspute and is contrary to the City's pleading and contentions, it is improperly. Therefore, the City's motion for a protective order striking Request No. 1 In the June 11, 2012 Notice to Admit is granted and Request No. 1 is stricken. Conclusion Defendant has not met its burden in proving that the complaint must be dismissed f pre-answer under any o the subsections of CPLR 3211 it relies upon. Therefore, defendant's motion to dismiss the complaint is denied. Defendant shall answer in the -Page 7 of 8- - [* 9] - .. .. . 4 manner provided under CPLR 321 1 [e]. The claims against Gandhi are hereby severed and dismissed at the request of National Fire. The dismissal is without prejudice to any claims by and against Gandhl in the 2010 third party actlon. The City s motion f r a protective order is granted to the extent that Request No. I o is stricken. Anticipating that issue will be joined, this case is hereby scheduled for a Preliminary Conference on November 1,2012 in Part I O , 60 Centre Street, Room 232 at 9:30a.m. Any relief requested but not specifically addressed is hereby denied. Dated: New York, New York September 7,2012 So Ordered: -Page 8 of 8-

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