Starr Indem. & Liability Co. v 493 Fulton LLC

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Starr Indem. & Liability Co. v 493 Fulton LLC 2018 NY Slip Op 31793(U) July 26, 2018 Supreme Court, New York County Docket Number: 651997/2018 Judge: Debra A. James 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 07/27/2018 12:14 PM 1] INDEX NO. 651997/2018 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 07/27/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: IAS MOTION 59EFM PART HON. DEBRA A. JAMES Justice ------------------------------------X STARR INDEMNITY & LIABILITY COMPANY, AS SUBROGEE OF OREN S. LANGNAS d/b/a FRENCH CORNER, Plaintiff, 651997/2018 INDEX NO. MOTION DATE MOTION SEQ. NO. 07/24/2018 001 ------ -v493 FULTON LLC and IMPACT BUILDERS CORP., DECISION AND ORDER Defendants. -------·-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 DISMISSAL were read on this motion to/for ORDER Upon the foregoing documents, it is ORDERED that the motion of defendant 493 Fulton LLC to dismiss the complaint pursuant to CPLR 3211{a) (1) herein is GRANTED and the complaint is DISMISSED in its entirety as against such defendant, with costs and disbursements to such defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of such defendant; and it is further ORDERED that the action is severed and continued against the remaining defendant; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further 851997/2018 STARR INDEMNITY & LIABILITY vs. 493 FULTON LLC Motion No. 001 1 of 4 Page 1 of4 [*FILED: NEW YORK COUNTY CLERK 07/27/2018 12:14 PM 2] INDEX NO. 651997/2018 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 07/27/2018 ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at· the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh)]; and it is further ORDERED that the remaining defendant shall serve and file an answer to the complaint within twenty (20) days of service of this order with notice of entry; and it is further ORDERED that the remaining parties are directed to appear in IAS Part 59, Room 331, 60 Centre Street, New York, New York, for a preliminary conference on August 28, 2018, 9:30 AM. DECISION This court concurs with the moving defendant that the Lease between it and plaintiff's subrogor, and the comprehensive general liability insurance policies (CGL) that each party 651997/2018 STARR INDEMNITY & LIABILITY vs. 493 FULTON LLC Motion No. 001 2 of 4 Page 2of4 [*FILED: NEW YORK COUNTY CLERK 07/27/2018 12:14 PM 3] INDEX NO. 651997/2018 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 07/27/2018 purchased 1 , irrefutably establish that plaintiff and defendant agreed to and effectuated waivers of their respective rights of subrogation on any claim arising from alleged acts of negligence resulting in damages or injury to person or property on the Premises. See Kaf-Kaf, Inc. v Rodless Decorations, 90 NY2d 654 (1997) . 2 Defendant I is incorrect that paragraph captioned 5 6. ' "Maintenance and Repair" of the Rider to the Lease, conflicts with the I waiver of subrogation "Casualty" of the Lease. I I provisions of paragraph 9. entitled That Rid.er paragraph admittedly conflicts with paragraph 8., captioned "Tenant's Liability" of the Lease, in that it makes the Owner responsible for any leaks even when not arising out of the Owner's negligence. 1 The moving defendant attaches its CGL policy (insured: Avi Oishi, et al) for the first time in its reply in further support of its motion, which ordinarily the court would not consider. However, as plaintiff forewent this court's invitation to submit a sur-reply, in its discretion and in the interest of judicial economy, the court considers the late submission. 2 The court notes that in the WHEREFORE clause of its complaint, plaintiff seeks no more than the amount that it paid on the subrogor's claim under its CGL policy but does not seek any damages for uninsured losses incurred by its insured. 651997/2018 STARR INDEMNITY & LIABILITY vs. 493 FULTON LLC Motion No. 001 3 of 4 Page 3of4 [*FILED: NEW YORK COUNTY CLERK 07/27/2018 12:14 PM 4] INDEX NO. 651997/2018 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 07/27/2018 Nonetheless, Rider paragraph 56. is entirely consistent with Lease paragraph 9 (b), other casualty, (d) and (e) regarding damage from fire or fault or no fault, for which each party released and waived its respective rights of recovery against the other. 7/26/2018 DATE CASE DISPOSED CHECK ONE: X GRANTED D X DENIED NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 651997/2018 STARR INDEMNITY & LIABILITY vs. 493 FULTON LLC Motion No. 001 4 of 4 D OTHER D REFERENCE Page 4 of 4

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