Greater N.Y. Mut. Ins. Co. v Dongbu Ins. Co., Ltd., (U.S. Branch)

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Greater N.Y. Mut. Ins. Co. v Dongbu Ins. Co., Ltd., (U.S. Branch) 2018 NY Slip Op 30599(U) April 5, 2018 Supreme Court, New York County Docket Number: 151673/2017 Judge: Kelly A. O'Neill Levy Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 04/06/2018 04:04 PM 1] NYSCEF DOC. NO. 30 INDEX NO. 151673/2017 RECEIVED NYSCEF: 04/06/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 19 -----------------------------------------------------------------------------------X GREATER NEW YORK MUTUAL INSURANCE COMPANY INDEX NO. 151673/2017 Plaintiff, MOTION DATE -vDONGBU INSURANCE COMPANY, LTD., (U.S. BRANCH), MOTION SEQ. NO. 001 Defendant. DECISION AND ORDER -----------------------------------------------------------------------------------X HON. KELLY O'NEILL LEVY: The following e-filed documents, listed by NYSCEF document number 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20,21,22,23,24,25,26,28,29 DISMISSAL were read on this motion to/for Upon the foregoing documents, it is In this insurance coverage action, plaintiff Greater New York Mutual Insurance Company ("Greater New York"), seeks a declaration that defendant Dongbu Insurance Company, Ltd., (US Branch) ("Dongbu") is obligated to defend and indemnify Melohn Foundation in the underlying personal injury action, Kolmer v. Boston Properties, Inc., et al., Index No. 153202/2013, also pending before this court. In the underlying action, Dongbu is defending Stage Star Deli Corp. ("Stage Star") and Greater New York is defending Melohn (sued as "Melohn Properties Inc."). Now Dongbu makes a pre-answer motion to dismiss the complaint, pursuant to CPLR 321 l(a)(7), and seeks a judgment that Melohn Foundation is not an additional insured on the insurance policy Dongbu issued to Stage Star (hereinafter, "the Dongbu Policy"). Greater New York opposes. 151673/2017 GREATER NEW YORK MUTUAL vs. DONGBU INSURANCE COMPANY, Motion No. 001 2 of 5 Page 1 of4 [*FILED: NEW YORK COUNTY CLERK 04/06/2018 04:04 PM 2] NYSCEF DOC. NO. 30 INDEX NO. 151673/2017 RECEIVED NYSCEF: 04/06/2018 The plaintiff in the underlying personal injury action, Lloyd Kolmer, alleged in the initial complaint that on February 3, 2013, he sustained injuries when he slipped and fell on the sidewalk outside of 125 West 55th Street in Manhattan, which houses Milos Restaurant. Following the plaintiffs deposition, plaintiff served a supplemental summons and amended verified complaint dated September 24, 2014 adding defendants Melohn Properties Inc. and Stage Star Deli Corp. and including allegations that plaintiffs fall occurred on the sidewalk in front of and/or adjacent to 125 West 55th Street and/or 105 West 55th Street. At the time of the incident, Melohn Foundation was the owner of the premises located at 105 West 55th Street and Stage Star was the longtime lessee of the ground floor. Under the terms of the lease, the tenant (Stage Star) and owner (Melohn) agreed that Stage Star would provide Melohn with "comprehensive policy of liability insurance with contractural [sic] liability endorsement protecting the Demised Premises or any appurtenance thereto." [Lease at ir 54(B).) Stage Star was covered as the named insured by a Businessowners' policy (policy number NBP 1222743) issued by Dongbu on July 12, 2012 ("Dongbu Policy"). Pursuant to the Dongbu Policy, the lessor of 105 W. 55th Street, #1, was listed as an additional insured. It is undisputed that at the time of the incident, Melohn was the lessor of the property and the Certificate of Liability Insurance issued by Morse Insurance Agency, Inc. identifies "Stage Star Deli Corp" as the insured and "The Melohn Properties Inc." as additional insured. However, the policy identifies a "Jessie Gupta" as the lessor. Defendant argues in its motion to dismiss that Melohn Foundation does not qualify as an additional insured under the policy and even if it did, it would be limited to the designated premises occupied by the named insured, that is, the area outside 105 West 55th Street. Plaintiff opposes and argues that the policy provides for an additional insured to the "Lessor" of the 151673/2017 GREATER NEW YORK MUTUAL vs. DONGBU INSURANCE COMPANY, Motion No. 001 3 of 5 Page 2 of 4 [*FILED: NEW YORK COUNTY CLERK 04/06/2018 04:04 PM 3] NYSCEF DOC. NO. 30 INDEX NO. 151673/2017 RECEIVED NYSCEF: 04/06/2018 property which is clearly the Melohn Foundation, despite the mention of "Jessie Gupta." Further, plaintiff contends that there remains an open question in the underlying action concerning where plaintiff fell precluding dismissal based on liability only extending to accidents relating to the premises designated in the policy. Discussion CPLR § 321 l(a)(7) permits the court to dismiss a complaint that fails to state a cause of action. The complaint must be liberally construed and the plaintiff given the benefit of every favorable inference. See Leon v. Martinez, 84 N.Y.2d 83, 87 (1994). The court must also accept as true all of the facts alleged in the complaint and any factual submissions made in opposition to the motion. See 511 W 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 (2002). If the court "determine[ s] that the plaintiff [is] entitled to relief on any reasonable view of the facts stated, [its] inquiry is complete" and the complaint must be declared legally sufficient. Campaign.for Fiscal Equity v. State of New York, 86 N.Y.2d 307, 318 (1995). While factual allegations in the complaint are deemed true, bare legal conclusions and facts flatly contradicted on the record are not entitled to the presumption of truth. Summit Solomon & Feldesman v. Lacher, 212 A.D.2d 487, 487 (1st Dep't 1995). While it is true that the action against Stage Star and Melohn may be dismissed at a later point should it be found that plaintiff did not fall outside 105 West 55th Street, dismissal of the coverage action on 3211 (a)(7) grounds is inappropriate here where the complaint is legally sufficient. See Great Atlantic Ins. Co. v. Weinstein, 125 AD2d 214, 215 (1st Dep 't 1986). See also Southwest Mar. & Gen. Ins. Co. v. Preferred Contrs. Ins. Co., 143 AD3d 577, 577 (1st Dep't 2016)(denying a CPLR 321 l(a)(l) and (7) motion to dismiss where the "additional insured endorsements at issue do not reference plantiffs, plaintiffs are identified on the certificates of 151673/2017 GREATER NEW YORK MUTUAL vs. DONGBU INSURANCE COMPANY, Motion No. 001 4 of 5 Page 3 of 4 [*FILED: NEW YORK COUNTY CLERK 04/06/2018 04:04 PM 4] INDEX NO. 151673/2017 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/06/2018 insurance, which is relevant to whether plaintiffs' exclusion from the endorsements was perhaps an inadvertent error (citation omitted).") Accordingly, it is ORDERED that defendant Dongbu Insurance Co. Ltd.'s motion to dismiss the complaint is denied; and it is further ORDERED that defendant is directed to serve an answer to the complaint within 20 days after entry of this order; and it is further ORDERED that counsel are to appear for a status conference in Part 19 (60 Centre Street, Room 218) on May 16, 2018, at 9:30 AM. This constitutes the decision and order of the court. ~ [;/(.u_L;JMu7 4/5/2018 KE~VY,J.S.C. DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ HON. KELLY O'NEILL LEVV CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER DO NOT POST FIDUCIARY APPOINTMENT 151673/2017 GREATER NEW YORK MUTUAL vs. DONGBU INSURANCE COMPANY, Motion No. 001 5 of 5 J.S.C. D OTHER D REFERENCE Page 4 of 4

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