85 Kenmare Realty Corp. v Mills

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85 Kenmare Realty Corp. v Mills 2013 NY Slip Op 32469(U) October 11, 2013 Supreme Court, New York County Docket Number: 100290/2012 Judge: Doris Ling-Cohan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 10/16/2013 [* 1] SUPREME COURT OF THE STATE OF NEWYOkK . N·EW YORK COUNTY I ' \ I PRESENT: PART Justice I INDEX NO ¢ ....,.I_ _ __ MOTIONDAiE MOTION SEt NO. _ __ SUMMARY JUDGMENT to----,"""'.: +-don )his~ _~~;..:..~~.:...=J~· I </-~~..-::!-~+-<J1-, f, .c..a.._.f,____ toHor Affidavi~ - Exhibits Notice of Motion/Order to Show Cause 7 . . . i; :( ~er ¢ ~.s - ~ 7/cJM. . ~k -·.~·l;;..."f,_·.,...~=...;-,;;;;;....,;;..,.)'------Upon the foregoing papers, it is ordefecUhat ~~ motlon4;. .,.. o,,..., r s-- ~ .;.:;_ S°<J-~ J~r-1~ '; ' ~. w 0 fE :::> ., ~ I No(s). ___,..I_s ____ I No(s). _,_\_6 _ __ _ /' I 3, ~ fr'- ! I /4~~ \ ': .. I .. l't) ! I ~~1 ~~ :' r "I 2.. No(s). Answering.Affidavits.--- Exhibits _ _ _ __ _ , , _ · : - - - - - - - - - - - - - - Replying Affida~tts · ¢ A.Iv -h 4 o _3' 1 Index Nu er: 100290/2012 85 KENMARE REALTY CORP. vs. I AM MALIA MILLS LLC SEQUENCE NUMBER : 001 The following papers, numbered 1 --- ~ 0 IC w 0::: 0::: w u. w 0::: .. ¢ o· :::> u. c( I- "' Ow w g, 0::: (!) - 1. ¢. 11£' -~~~·; . ..... . ;, 1-1···· z w j UNFlltED JUDGMENT rk tered by the County Cle Thisjud.gm~nt has ?!n~~~nb:nserved based her~on. To and ~ottce . of entrys I or authorized representative must obtain e:ntey, coun .et th Judgment Clerk's DesK {RoOn\ . appear m person ~ . ¢ e · . . .... ¢ ¢ >- ...... ..J ~ ..J z _1416)-.. . 0::: ~ . !!2 0 w ..I "' ..I c( ' :. . . ,· ¢ ¢ ¢ ¢ t;> < . f2 S:2 w z ::c 0 1- § :!E i ~1. 0::: f2 Dated: Oc f. 1~ ~<::--~,' i _ _ _ _ _ ___,__ _ _ J.S.C. 2 il/ 3 · . . ¢ LL 1. CHECK ONE: ......................................~ .. ···········~t· ¢oooo ¢ ¢ ¢··~"'f: 'FCASEDISPOSED 2. CHECK AS APPROPRIATE: ooo ¢H ¢H ¢oomooo ¢ ¢ ¢ ¢noooM?TION JS: ! \ . D·DENIEO ;:.~ ¢ ¢::.:~..............: ¢ ¢ ¢:..::.J lJ SEtnJi.ORDER . . . . ; b DO NOT POST 0 "\CHECK IFAPPROPRIATE:-:......... \.·.·· ¢.. ·. ·. . ··. .· D GRANTED .JUDGE ooms UNG~COHA~ D NON-F~~AL DISPOSITION D GRANTED lN PARrT D OTHER 0 SUBMI+ ORDER FIDUCIARY APPOINTMENT 1 ! 0 REFERENCE [* 2] [* 3] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 36 -----------------------------------------x 85 KENMARE REALTY CORP. and NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Plaintiffs, Index No. 100290/]2 -againstI AM MALIA MILLS and TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Motion Seq. No.: 001 Defendants. -----------------------------------------x Doris Ling-Cohan, J.: In this dispute over insurance coverage, plaintiffs 85 Kenmare Realty Corp. (85 Kenmare) and National Union Fire Insurance Company of Pittsburgh, Pa. (National) move, pursuan!t to CPLR 3212, for summary judgment, and, pursuant to CPLR 3001, !for a declaration that defendant Charter Oak Fire Insurance Compa'ny, sued herein as Travelers Property Casualty Company of America (Travelers/Charter Oak), is obligated to provide a defense to 85 Kenmare in an underlying personal injury action. Travelers/Charter Oak cross-moves for summary judgment dismis,sing the complaint. 85 Kenmare is the owner of a building located at 197 and\ 199 Mulberry Street in Manhattan. 85 Kenmare leased the ground floor of 199 Mulberry Street to defendant I Am Malia Mills, LLC (I 1 Am [* 4] , ¢ Malia), where I Am Malia operated a shop (premises). The lease required I Am Malia to add 85 Kenmare to a general liability policy as an additional insured. I Am Malia obtained a liability policy with Travelers/Charter Oak (policy). Policy, Ex. E. Aff. in Support of Motion, The policy contained an endorsement entitled· "Blanket Additional Insured-Mangers or Lessors of Premises," which reads as follows: Who is an insured (Section II) is amended to include as an insured any person or organization (referred to below as "additional insured") with whom you have agreed in a written contract, executed prior to loss, to name as an additional insured, but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you . . . . On April 23, 2010, an incident occurred in which i i Kathry~ Ann nea~ the Perkins (Perkins) tripped and fell on the sidewalk at or outside of the premises, and sustained personal injuries. Perkins, along with her husband, Frank Perkins, instituted a lawsuit in this court against, among others, 85 Kenmare, I Am th~ Malia, and Sheryl Lee, Inc., doing business as BAG (BAG}, shop located next door to the premises, at 197 Mulberry Street. See Perkins v 85 Kenmare Realty Corp., Index No. 102502/11 (underlying action) . The bill of particulars in the underlyibg I I action alleges that Perkins fell "at or about a raised walkwa~ abutting premises known as 197-199 Mulberry Street ... " Support of Motion, Ex. B), implicating both stores. 2 (Aft'.. in [* 5] Travelers/Charter Oak is defending I Am Malia in the underlyi!ng action. 85 Kenmare tendered a demand on Travelers/Charter Oak td defend it in the underlying action, as an additional insured under the policy. Travelers/Charter Oak disclaimed, on the ground that the accident did not arise out of the "ownership, maintenance or use" of the premises, since, in so far as the accident may be found to have occurred in front of I Am Maliai, and not BAG, the accident took place on the sidewalk outside I Malia, which is not part of the leased space, i.e., inside Am th~ building. "Where the terms of an insurance policy are clear and unambiguous, interpretation of those terms is a matter of law: for the court." Town of Harrison v National Union Fire Insurancei Company of Pittsburgh, Pa., 89 NY2d 308, 316 (1996). "An insurer is entitled to have its contract of insurance enforced in accordance with its provisions and without a construction contrary to its express terms." Insurance Co., 110 AD2d 46, Bretton v Mutual of Omaha 49 (1st Dept), affd 66 NY2d 1020 ( 1985) . In ZKZ Associates v CNA Insurance Co. (89 NY2d 990 [1997]), the Court of Appeals, in reviewing a trip and fall accident which occurred on the sidewalk in front to a garage, which was leas~d to a tenant having insurance adding the owner as an additional 3 [* 6] insured, found that the sidewalk was part of the insured premises I "by implication" because that part of the sidewalk was ,, "necessarily used for access in and out of the garage ... at 991. Id. Consequently, the claim was found to have arisen out of the "ownership, maintenance (or) use" of the premises, and sQ, was covered by the policy. Id. I ZKZ Associates has since been cited to provide coverage for r 1 an additional insured owner, where a trip and fall accident occurred on the sidewalk in front of leased premises "necess~rily used for access in and out" of the premises. Housing Corp., Stein v 1349 31 Misc 3d 1224 (A), *11, 2011 NY Slip Op 50813i(U) I (Sup Ct, NY County 2011) . i sta~ed In Stein, the policy expressly that "ownership, maintenance or use" of premises, included "operations necessary or incidental to those premises." Id. 1 However, this language merely mirrors the finding in ZKZ Associates, that a sidewalk used for access to and from a premises is "necessarily used" for that purpose. Management Co., Inc. See also Deiwars v Great Northern Insurance Co., 2001 NY Slip Op 40254 (U), * 3 (App Term, 1st Dept 2001) (sidewalk in front bf leased premises "necessarily used for access" to the premises~ and "any liability based on a sidewalk defect necessarily arose out of the 'use' of the demised premises and comes within the! 1 The court in Stein also noted that the lessee had a sidewalk license to put out tables and chairs, but this part of the sidewalk was not implicated in the accident. 1 4 [* 7] additional insureds' coverage" [quoting ZKZ Associates 89 NY2d at 991]) . In accordance with the foregoing case law, as to the suBject I I ! accident, if it is proven to have occurred on I Am Malia's I sidewalk,then the accident occurred on the insured's premises; since the sidewalk is necessarily used for access to and Arn Malia's shop. Therefore, Travelers/Charter Oak is to defend 85 Kenmare in the underlying action. i fro~ I obliga~ed Travelers/Charter Oak is also obligated to reimburse National for its costs in defending 85 Kenmare in the underlying action. Accordingly, it is ORDERED that the motion by plaintiffs 85 Kenmare Realty Corp. and National Union Fire Insurance Company of Pittsburgh!, I Pa. for summary judgment is granted; and it is further ORDERED that the cross-motion by defendant Charter Oak Fire Insurance Company, sued herein as Travelers Property Casualty Company of America, is denied; and is further ORDERED and ADJUDGED that defendant Charter Oak Fire Insurance Company, sued herein as Travelers Property Casual tyl Company of America, is obligated to provide a defense to 85 Kenmare Realty Corp. in the action entitled Perkins v 85 Kenm~re i Realty Corp., Index No. 102502/11, pending in this court; and: it is further ORDERED and ADJUDGED that defendant Charter Oak Fire 5 [* 8] ! Insurance Company, sued herein as Travelers Property Casualtj l Company of America, is obligated to reimburse plaintiff Natiqnal I Union Fire Insurance Company of Pittsburgh, Pa., for attorne~s' fees, expenses and disbursements expended in the defense of tlhe i action Perkins v 85 Kenmare Realty Corp., Index No. 102502/1~; and it is further ORDERED that with respect to the issue of legal fees/co~ts, within 30 days of entry of this decision/order/judgment, plaintiff National Union Fire Insurance Company of PittsburgH, Pa. are directed to submit an accounting of the fees/costs incurred, to defendant Charter Oak Fire Insurance Company, sujed I herein as Travelers Property Casualty Company of America, and such defendant is directed to review the accounting, and shou1d i defendant agree with such fees/costs, satisfy such defense fees/costs incurred by plaintiff National Union Fire Insuranc~ Company of Pittsburgh, Pa. , within 30 days from receipt of tJe accounting, or provide specific reasons for its disagreement within such time (such objections shall be specifically direct~d to each item billed, with detailed reasons for the objection); and it is further ORDERED that, after following the above procedure with respect to attorneys' fees, and conferring in person or by telephone, should the parties be unable to resolve the issue of 6 [* 9] the amount of attorneys' fees owed to plaintiff National Uni6n Fire Insurance Company of Pittsburgh, Pa. for the defense of the action Perkins v 85 Kenmare Realty Corp., Index No. 102502/l I such issue is respectfully referred to a Special Referee to near I and determine, in accordance with CPLR §4317(b); and it is further ORDERED that counsel for the party seeking the ref erenctj, I or, absent such party, counsel for the plaintiff shall, withfn 90 days from the date of this order, serve a copy of this order lwith ! notice of entry, together with a completed Information Sheet,'.I 2 upon the Special Referee Clerk in the Motion Support Office, [Rm. 119 at 60 Centre Street, who is directed to place the matter !on the calendar of the Special Referee's Part (Part 50 R) for trie I earliest convenient date. Dated: October lj_, 2013 Hon+ 7 Doris Ling-Cohan, J.S.C. J:\Surnmary Judgment\85 Kenmare rlty. linell hunter.wpd UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannot be served based her~on. To btain entry counsel or authorized representative must ~ppear in p~rson at the Judgment Clerk's Desk (Room 1418). 2 Copies are available in Rm. 119 at 60 Centre Street, And on the Court's website. 7

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