AXA Art Ins. Corp. v Fortress Fine Art Stor.

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AXA Art Ins. Corp. v Fortress Fine Art Stor. 2015 NY Slip Op 32331(U) December 10, 2015 Supreme Court, New York County Docket Number: 152982/2013 Judge: Jennifer G. Schecter 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 57 --------------------~-------------------x Index No. 152982/13 AXA ART INSURANCE CORPORATION a/s/o RICHARD AVEDON FOUNDANTION, Plaintiff, -against- FORTRESS FINE ART STORAGE a/k/a FORTRESS .. NEW YORK HOLDINGS, INC. , Defendant. ----------------------------------------x JENNIFER G. SCHECTER, J.: Defendant Fortress Fihe Art Storage (Fortress) owns property located at 49-20 5th Street in Long Island City, New The Richard Avedon Foundation York. (Foundation) owns "a mural sized triptych photograph entitled, The Chicago Seven, September 25, 1969 (Artwork) Ex A at 'l[ (Affirmation in Support [Supp], 5). While stored at Fortress' premises, the Artwork "sustained significant water damage to one of its panels and the Foundation timely notified [its insurer--plaintiff AXA Art Insurance Corporation (AXA)] of its claim" (Supp at 'l[ 6). In 2013, AXA commenced this action against Fortress. In its verified complaint, AXA alleges that it is the subrogee of the Foundation, that the Artwork was damaged as a result of a roof leak and that Fortress was negligent in maintaining its roof, resulting in damage to the Artwork (Supp, Ex A at 'l['l[ 5, 11-12). In 2014, the Foundation commenced a special proceeding against AXA, which was assigned Index Number 151435/2014 and is pending (Special Proceeding). [* 2] Index No. 152982/2013 Page 2 AXA Art Ins. Corp. v Fortress Fine Art Storage AXA moves for a stay of discovery pending determination of the Special Proceeding. to force AXA to present It urges that "it would be unjust its damages claim at an inquest without a determination in [the Special Proceeding]" (Supp at ~ 10). It argues that there would be no prejudice to Fortress by staying disclosure (Supp at ~ It ·also moves 12). for summary judgment as to liability "since there are no issues of fact that the negligence of subject arose incident defendant Fortress, who out admitted 'ownership' and control' of the subject premises" 16). of the both (Supp at ~ Without submitting any proof of the cause of the damage to the Artwork, AXA maintains that Fortress breached its duty and is automatically responsible for the damage because the Artwork was "stored and/or located within" Fortress' premises (Supp at ~ 18). Fortress cross-moves to dismiss the action pursuant to. CPLR 32ll(a) (7) the because subrogation on it Foundation. and has not ground did that not conceded make AXA has any liability no right payment for the to to the claim (Affirmation in Opposition and in Support of Cross Motion [Cross] at ~ 29) ·-' [* 3] AXA Art Ins. Corp. v Fortress Fine Art Storage Index No. 152982/2013 Page 3 Dispositive Motions The parties' dispositive motions are denied. Neither party met the applicable burden of establishing entitlement to judgment. Summary Judgment is a drastic remedy that should not be granted if there is any doubt as to the existence of material triable issues(see Glick & Dolleck v Tri-Pac Export Corp, 22 NY2d 439, 441 [1968]). The heavy burden is on the movant, through use of admissible evidence, showing of entitlement to to make a prima judgment (see William J. facie Jenack Estate Appraisers and Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013]). "Where the moving party fails to meet this burden, summary judgment cannot be granted, and the non-moving party bears no burden to otherwise persuade the Court against summary judgment. a prima facie Indeed, the moving party's failure to make showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers" (id.). AXA did not demonstrate through admissible evidence that Fortress was negligent. In its motion, it did not prove that the Artwork was damaged as a result of a roof leak, as alleged in its complaint, water damage. or that Fortress was responsible for the Its motion must be denied. Nor has Fortress demonstrated that the complaint should be dismissed for failure to state a cause of action. "Unlike [* 4] AXA Art Ins. Corp. v Fortress Fine Art Storage Index No. 152982/2013 Page 4 on a motion for summary judgment where the court 'searches the record and assesses the sufficiency of the parties' evidence,' on a motion to dismiss the court 'merely examines the adequacy of the pleadings'" (Davis v Boeheim, 24 NY3d 262, 268 [2014] [citations omitted]). the complaint's In fact, the court is obliged to accept factual allegations as true and accord plaintiff the benefit of every possible favorable inference (Mill Financial, LLC v Gillett, 122 AD3d 98, 103 [1st Dept In the complaint, AXA alleges, among other things, 2014]) . that based on the applicable insurance policy it is subrogated to its insured' s right of This recovery. allegation is sufficient for purposes of stating a cause of action against Fortress. Fortress, moreover, allegation is untrue. that it even has not even shown that the It was not until it submitted its reply referenced the applicable insurance policy (Affirmation in Reply to Plaintiff's Opposition to Defendant's Cross-Motion at 'II 7 and Ex A at K; Memorandum at 2) see also Supplemental and Fortress has not asserted, much less established, that AXA definitively did not make payments "to or for" the Foundation (emphasis added). Fortress has not demonstrated that. AXA failed to properly plead a cause of action and its cross-motion to dismiss is therefore denied. [* 5] AXA Art Ins. Corp. v Fortress Fine Art Storage Index No. 152982/2013 Page 5 The motion for a stay is denied. AXA did not establish that it is entitled to a stay as a matter of right. no reason that this case dealing with There is subrogation and liability for the water damage should await adjudication of the Special Proceeding. Nor is there any indication that AXA will not proceed against Fortress depending on the outcome of the Special Proceeding. Al though Fortress did not take a position on a stay of discovery because it moved for outright dismissal of the case, the Court is not inclined to altogether halt these proceedings unless the parties can establish that it would not make sense or would be a waste of resources to proceed. No one has done so here. Therefore, the parties are to appear for a conference on January 20, 2016 at 10:00 a.m. (Room 623, 111 Centre Street). At the conference, the timing of disclosure can be discussed and a schedule set. There is no basis for any award of sanctions. Accordingly, it is ORDERED that the motion and cross-motion This constitutes the Dated: December 10, 2015 a:f~ DENIED.

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