RRES Rest. Group, LLC v Amguard Ins. Co.

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RRES Rest. Group, LLC v Amguard Ins. Co. 2020 NY Slip Op 31800(U) June 10, 2020 Supreme Court, New York County Docket Number: 650164/2015 Judge: Andrew Borrok 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: 1] NEW YORK COUNTY CLERK 06/10/2020 12:17 INDEX NO. 650164/2015 P~ NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 06/10/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART IAS MOTION 53EFM -----------------------------------------------------------------------------------x RRES RESTAURANT GROUP, LLC D/B/A DESTINO RESTAU RANT, INDEX NO. MOTION DATE Plaintiff, -v- MOTION SEQ. NO. 650164/2015 05/28/2020 002 002 AMGUARDINSURANCECOMPAN~ Defendant. -----------------------------------------------------------------------------------x RRES RESTAURANT GROUP, LLC, INDEX NO. Plaintiff, 155485/2016 MOTION DATE 0512812020 MOTION SEQ. NO. 003 004 006 -againstEFFECTIVE PLUMBING CORP., Defendant. --------------------------------------------------------------------------------x EFFECTIVE PLUMBING CORP., Third-Party Plaintiff, DECISION+ ORDER ON MOTION -againstALL COUNTY SEWER & DRAIN, INC., Third-Party Defendant. --------------------------------------------------------------------------------x HON. ANDREW BORROK: The following e-filed documents, listed by NYSCEF document number (Motion 002) 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87,88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100 DISMISS were read on this motion to/for The following e-filed documents, listed by NYSCEF document number (Motion 002) 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87,88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 1 of 15 Page 1 of 15 [*[FILED: 2] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 The dispositive issues are (i) whether RRES Restaurant Group, LLC (RRES) failed to comply with the terms of its insurance policy by settling a lawsuit with its landlord and releasing all claims against third parties without notifying Amguard Insurance Company (Amguard) and (ii) whether RRES's release of Effective Plumbing Corp. (Effective Plumbing) for the very claims at issue is a bar to bringing this lawsuit. Because the court answers both questions in the affirmative, (i) Amguard's motion (Mtn. Seq. No. 002) for an order pursuant to CPLR § 3212 granting summary judgment dismissing the complaint and a declaratory judgment that Amguard is not obligated to pay any more monies to RRES, is granted, (ii) Effective Plumbing's motion (Mtn. Seq. No. 003) for an order pursuant to CPLR § 3212 granting summary judgment (a) dismissing the complaint of RRES, (b) on its third-party complaint against All County Sewer & Drain, Inc. (All County), ( c) dismissing All County's counterclaim, and (d) awarding costs and sanctions pursuant to CPLR § 8303-a and 22 NYCRR § 130.1-1 against RRES, its members, or its attorneys is granted in part as set forth below and (iii) All County's motion for an order pursuant to CPLR § 3212 granting summary judgment dismissing the complaint of RRES and dismissing the third-party complaint of Effective Plumbing is granted. I. The Relevant Facts and Circumstances RRES was the commercial tenant of the premises located at 891 First Avenue, New York, New York, consisting of the ground floor, mezzanine, and basement of the subject building (the Premises), in which RRES operated a restaurant known as Destina from February 2006 to November 2013. RRES obtained a policy of insurance from Amguard under Businessowner's Policy# RRBP404050, for the policy period from January 20, 2013 to January 20, 2014 (the 2013 Amguard Policy). 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 2 of 15 Page 2of15 [*[FILED: 3] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 The 2013 Amguard Policy provides coverage for "direct physical loss of or damage to Covered Property at the premises ... caused by or resulting from any Covered Cause of Loss" (650164/2015, NYSCEF Doc. No. 94, §I.A). Covered Property includes buildings and certain property (id., § I.A. I). The 2013 Amguard Policy also provides coverage for "the actual loss of business income ... sustain[ed] due to the necessary suspension of ... "operations" during the "period ofrestoration" (id.,§ I.A.5.f). The 2013 Amguard Policy expressly excludes coverage for, among other things, losses occurring as a result of an ordinance or law, governmental action, weather conditions, or negligent work performed on or off of the Premises (id.,§§ I.B. l [a], [c], II.B.3). Section LB the 2013 Amguard Policy further provides that Amguard will not pay for either (i) neglect of an insured to use all reasonable means to save and preserve property from further damage at and after the time of loss or (ii) continuous or repeated seepage or leakage of water, or the presence or condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more (id.,§§ I.B.2. [k], [p]). Significantly, Section III.K.l. of the 2013 Amguard Policy provides: K. Transfer Of Rights Of Recovery Against Others To Us. 1. Applicable to Businessowners Property Coverage: If any person or organization to or for whom we make payment under this policy has rights to recover damages from another, those rights are transferred to us to the extent of our payment. That person or organization must do everything necessary to secure our rights and must do nothing after loss to impair them. But you may waive your rights against another party in writing. (id., iii! III.K. l. [emphasis added]). On March 29, 2010, the premises sustained significant damage in a flood caused by a PVC pipe failure and an improper plug (the 2010 Flood). The premises had to undergo substantial 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 3 of 15 Page 3of15 [*[FILED: 4] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 alterations as a result of the 2010 Flood, which caused the restaurant to close for approximately eight months. RRES filed a claim for its losses in connection with the 2010 Flood under its insurance policy with its prior insurance carrier, Argo Insurance, and ultimately settled the claim for approximately $400,000. A second flood occurred in the Premises in January 2013 (the January 2013 Flood), which caused damage to the vestibule area and necessitated a three-day closure of the restaurant to repair the damage. Accordingly, RRES filed a claim with Amguard and the parties settled the claim. A third flood occurred in the Premises on July 5, 2013 (the July 5, 2013 Flood) caused by a failed rising pipe and sewage line, which emptied sewage into the bar, mezzanine, and vestibule areas of the Premises. Following a cleanup of the Premises, the restaurant was able to re-open later that day. A fourth flood occurred later in July 2013 (the Second July 2013 Flood). According to Rebekah Altieri, one of the principals of RRES, the Second July 2013 Flood was caused by workers from Effective Plumbing, the plumbing company hired by the landlord to perform plumbing services on the dental office located on the floor directly above the restaurant, when they were cutting pipes on the day of the Second July 2013 Floor. On August 26, 2013, the restaurant closed to conduct repairs and renovations. RRES received monetary disbursements from Amguard for the July 5, 2013 Flood totaling $136,637.96 for business interruption and repairs. Ultimately, after the renovations were complete, and during the restaurant's "soft re-opening," on November 24, 2013, a pipe fell from the ceiling in the basement and struck the restaurant's chef on the head (the November 2013 Incident). Following the November 2013 Incident, the restaurant closed and never reopened. RRES filed a claim with Amguard in connection with the July 5, 2013 Flood. After conducting an investigation and review of the claim, Amguard made payments to RRES on the claim 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 4 of 15 Page 4of15 [*[FILED: 5] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 totaling $136,637.96 for loss of business and property damage. Subsequently, RRES filed a claim with Amguard in connection with the November 2013 Incident. RRES provided three different causes for the loss: (1) a heating steam pipe was turned on and aggravated the saturated concrete ceiling in the basement, (2) the damages arose from the July 5, 2013 Flood, and (3) a new pipe break occurred sometime after the "soft re-opening" of the restaurant in November 2013. By letter, dated June 2, 2014, Amguard notified RRES that it was denying the claim based on the November 2013 Incident. (650164/2015, NYSCEF Doc. No. 84, Ex. 8). Amguard explained that it was denying coverage because deterioration and spalling of the concrete ceiling "are the result of continued and repeated exposure to water, the damages from which are not covered by [the 2013 Amguard Policy]" (id.). Amguard further noted that "there is an admission of ongoing water leaks at your leased premises in the rider, Page 13, Section 66, contained in your lease agreement signed in August 2005" (id.). With respect to the damages that RRES claimed was related to the July 5, 2013 Flood, Amguard stated that "our investigation has concluded that the damage and business interruption reported to have occurred sometime shortly after November 18, 2014, are not related to the July 5, 2013 loss occurrence" (id.). Amguard further noted that it found no evidence that the November 2013 Incident was caused by a new pipe break that occurred after the "soft re-opening" (id.). Additionally, Amguard relied on the provision that expressly excludes coverage for losses resulting from any acts or decisions of a governmental body that prevents the restaurant from operating (id.). 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 5 of 15 Page 5of15 [*[FILED: 6] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 The prior landlord, Harry Field Realty, LLC (Harry Field), sued RRES to recover unpaid rent, alleging that RRES had not paid any rent since July 2013. In the landlord/tenant action, Ms. Altieri claimed that Harry Field's acts and omissions, including its failure to make necessary repairs to the Premises, caused RRES to close the restaurant. Subsequently, however, Madison Realty (Madison) acquired the subject building from Harry Field. Significantly, as it relates to the instant motions, RRES entered into a settlement agreement with Madison (the Stipulation of Settlement) pursuant to which Madison paid RRES $395,000 and RRES agreed to vacate the premises and release all claims, including claims for negligent maintenance or repairs at the Premises against Harry Field and all contractors and plumbers, including Effective Plumbing. Specifically, the so-ordered Stipulation of Settlement states that "[e]ach party withdraws and releases all claims against the other" and that "[t]he waiver of claims by all parties includes waiver of right to return of security and all claims against the parties['] respective successors-ininterest, insurance carriers, (except as noted in iJ3 [i.e., except "respondent's claims against its own insurer"]), contractors, plumbers and attorneys" (650164/2015, NYSCEF Doc. No. 70 iii! 3, 6). RRES did not notify Amguard of the Settlement. RRES filed a summons and complaint against Amguard on January 20, 2015. This lawsuit is captioned RRES Restaurant Group, LLC d/b/a Destina Restaurant v Amguard Insurance Company and bears the Index No. 650164/2015 (the Amguard Lawsuit), asserting causes of action for breach of contract and bad faith and seeking a declaratory judgment that (1) any damages suffered by plaintiff in connection with the flooding incidents described in this Complaint are covered under the Policy, and (2) plaintiff is entitled to insurance coverage from defendant these damages pursuant to the Policy. 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 6 of 15 Page 6of15 [*[FILED: 7] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 Subsequently, and notwithstanding the release as to claims against Effective Plumbing in the Stipulation of Settlement, RRES sued Effective Plumbing for negligence in a separate lawsuit (the Effective Plumbing Lawsuit) by filing a summons with notice on June 30, 2016 and a complaint on July 1, 2016 in the New York State Supreme Court, New York County, in the matter captioned RRES Restaurant Group, LLC v Effective Plumbing Corp., index No. 155485/2016 alleging that the damage resulting from the November 2013 Incident was a direct result of the flooding caused by Effective Plumbing's negligent plumbing work. RRES also did not notify Amguard of the Effective Plumbing Lawsuit. On August 1, 2017, Effective Plumbing filed a third-party complaint against All County, asserting that All County is primarily responsible for any liability to RRES and if Effective Plumbing is found to be liable, it is entitled to indemnification and contribution from All County. Motion sequence numbers 003 and 004 in the Effective Plumbing Lawsuit have been submitted to this court to be decided in conjunction with motion sequence number 002 in the Amguard Lawsuit (155485/2016, NYSCEF Doc. No. 202). II. Discussion Summary judgment shall be granted only when the movant presents evidentiary proof in admissible form that there are no triable issues of material fact and that there is either no defense to the cause of action or that the cause of action or defense has no merit ( CPLR § 3212 [b ]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [ 1986]). The proponent of a summary judgment motion carries the initial burden to make a prima facie showing of entitlement to judgment as a 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 7 of 15 Page 7of15 [*[FILED: 8] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 matter oflaw (Alvarez, 68 NY2d at 324). Failure to make such a showing requires denial of the motion (id., citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party to produce evidence in admissible form sufficient to establish the existence of a triable issue of fact (Alvarez, 68 NY2d at 324). A. Amguard's Motion for Summary Judgment is Granted and RRES's Declaratory Judgment and Breach of Contract Causes of Action are Dismissed Amguard argues that summary judgment must be granted because RRES impaired Amguard' s right to pursue subrogation claims against Harry Field and Effective Plumbing in violation of the 2013 Amguard Policy by settling its claims with Harry Field and releasing claims against Effective Plumbers without notifying Amguard in violation of its obligations under the 2013 Amguard Policy as described above. As a result, Amguard argues that it was relieved of any liability under the 2013 Amguard Policy as a matter oflaw. In addition, Amguard argues that RRES' s cause of action for bad faith and punitive damages should be dismissed because the uncontroverted documentary evidence establishes that Amguard did not act in bad faith or engage in egregious conduct directed to RRES or the general public. In its opposition papers, RRES argues that because Amguard wrongly limited liability and made only a partial payment with respect to the July 2013 losses and denied liability for the November 2013 Incident, RRES did not impair Am guard's subrogation rights by settling the landlord/tenant matter and commencing an action against Effective Plumbing. RRES also argues that Amguard' s breach of the insurance contract by wrongly limiting or denying coverage and intentionally delaying the claims process relieved RRES of its obligations under the insurance 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 8 of 15 Page 8of15 [*[FILED: 9] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 contract and it was free to take actions to mitigate its damages by settling or pursuing its claims. RRES' s arguments fail. As an initial matter, because it is undisputed that RRES released Harry Field and all contractors and plumbers from all claims, it is RRES' s burden as the insured "to establish by virtue of an express limitation in the release or of a necessary implication arising from the circumstances of its execution that the release did not operate to prejudice the subrogation rights of the insurer" (Weinberg v Transamerica Ins. Co., 62 NY2d 379, 382-383 [1984]). As the Court of Appeals has explained: once the insurer has established the existence of a release, alleged to have constituted a breach of the insured' s agreement not to prejudice the insurer's subrogation rights, we conclude that it is fair and fitting and no undue imposition on the insured to place on him the burden of persuasion that there was no such breach. (id. at 383). Here, RRES has failed to meet its burden to establish that its settlement and release of claims did not prejudice Am guard's subrogation rights. Pursuant to Section 111.K.1 of the 2013 Am guard Policy, RRES was required to transfer its rights to recover from any third parties to Amguard and "do everything necessary to secure [Amguard's] rights, and ... do nothing after loss to impair them" (NYSCEF Doc. No. 94, § 111.K.1 ). The evidence establishes that RRES settled its claim against Harry Field without notifying Amguard and executed a general release pursuant to the so-ordered Stipulation of Settlement waiving all claims against Harry Field and all plumbers and contractors who performed work on the subject building, including Effecting Plumbing (650164/2015, NYSCEF Doc. No. 70, iJiJ 3, 6; NYSCEF Doc. No. 76, Altieri Tr. at 41:7-10, 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 9 of 15 Page 9of15 [*[FILED: 10] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 74:11-75: 11 ). By settling with Harry Field and releasing all claims against third parties without notifying Amguard, RRES necessarily impaired Amguard' s subrogation rights in violation of the 2013 Amguard Policy. Significantly, the evidence establishes that Amguard did not waive its subrogation rights. First, it is undisputed that the losses in question occurred in July 2013 and November 2013, and the soordered Stipulation of Settlement with Harry Field was entered into on July 14, 2014. Therefore, the three-year statutory period for Amguard to bring a claim against a third party had not yet run when RRES settled its claims. In addition, in support of its motion, Amguard adduces a letter, dated January 25, 2019, from Steven R. Dyki as counsel for Amguard to Jason M. Cieri as counsel for RRES, in which Amguard unequivocally asserts its subrogation rights and states: "Amguard Insurance Company does not waive any additional rights, and specifically reserves all rights under the Amguard Policy" (650164/2015, NYSCEF Doc. No. 80). There is simply no evidence to support an implied waiver of Amguard' s subrogation rights. Accordingly, Am guard's motion for summary judgment is granted and RRES' s first cause of action (declaratory judgment) and second cause of action (breach of contract) are dismissed. B. RRES's Bad Faith Cause of Action is Dismissed As a general rule, "[p]unitive damages are not recoverable for an ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights" (Rocanova v Equitable Life Assur. Soc. Of US., 83 NY2d 603, 613 [1994]). Punitive damages are only recoverable for a breach of contract where (1) "the breach of contract also involves a fraud evincing a high degree of moral turpitude and demonstrating such wanton dishonesty as to imply 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 10 of 15 Page 10of15 [*[FILED: 11] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 a criminal indifference to civil obligations," and 2) "the conduct was aimed at the public generally" (id. [quotation marks and citations omitted]). As the Court of Appeals has observed, [a] complaint does not state a claim for compensatory or punitive damages by alleging merely that the insurer engaged in a pattern of bad-faith conduct. The complaint must first state a claim of egregious tortious conduct directed at the insured claimant. Only then does an alleged pattern of bad-faith conduct attain legal significance insofar as it demonstrates that a public wrong would be vindicated by the award of punitive damages. (id., at 615). Amguard argues that the evidence establishes that there are no issues of fact that it investigated, reviewed, and paid benefits for the July 5, 2013 Claim, and that it had a good faith basis for denying the November 2013 Claim, and that it is therefore entitled to summary judgment dismissing the bad faith cause of action. In its opposition papers, RRES argues that Amguard acted in bad faith by improperly limiting RRES' s recovery on its claims and delaying the claims process. Here, again, RRES' argument fails. Amguard has come forward with sufficient evidence to establish that it did not act in bad faith. The evidence establishes that Amguard relied on independent adjusters to perform a field investigation and it employed independent accountants for an assessment of damages (650164/2015, NYSCEF Doc. No. 84, Loftus Tr. at 21:6-13; id., Ex. 9; NYSCEF Doc. No. 82, McGrady Tr. at 29:24-31 :4, 116: 16-117:21; id., Ex. 5-9). Based on the documentary evidence, Amguard acted in good faith in determining RRES's business income loss and loss to covered 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 11 of 15 Page 11of15 [*[FILED: 12] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 property based on the reports of its independent adjusters and accountants and based on its review of all available financial records and documentation. The evidence further establishes that in denying the November 2013 Claim, Amguard relied on RRES' s engineer and the independent adjuster and determined that the loss was the result of "continuous or repeated seepage or leakage of water, or the presence or condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more" (650164/2015, NYSCEF Doc. No. 84, Ex. 8; NYSCEF Doc. No. 82, McGrady Tr. at 37:11-14) and that it was also caused by the actions of a governmental body (650164/2015, NYSCEF Doc. No. 84, Loftus Tr. at 48:24-49:23). RRES fails to come forward with any evidence to raise an issue of material fact as to Amguard' s handling of the claims. There is simply no evidence suggesting bad faith, let alone a pattern of the same aimed at the public to rebut Amguard's showing that it handled the July 5, 2013 Claim and the November 2013 Claim in good faith. Accordingly, RRES's third cause of action for bad faith is dismissed. C. Effective Plumbing's Motion for Summary Judgment is Granted To invoke the rights of a third party beneficiary under a contract, a party must establish: "(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [their] benefit and (3) that the benefit to [them] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [them] if the benefit is lost" (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 336 [1983]). As the Court of Appeals has observed, stipulations of settlement, especially those entered into in open court, "are favored by the courts and not lightly cast aside" (Hallock v State, 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 12 of 15 Page 12of15 [*[FILED: 13] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 64 NY2d 224, 230 [1984]). A party may be relieved of consequences of a stipulation of settlement only upon a showing of fraud, collusion, mistake, or accident (Citibank, NA. v Rathjen, 202 AD2d 235, 235 [1st Dept 1994]). Effective Plumbing argues that it is entitled to summary judgment dismissal of the complaint because RRES expressly waived its right to bring any claims against Effective Plumbing pursuant to the Stipulation of Settlement. In its opposition papers, RRES argues that the release in the Stipulation of Settlement is ambiguous and is invalid because it was entered into by Anthony Curko, another member of RRES, and Mr. Curko did not have the authority to agree to the release. Here, pursuant to the Stipulation of Settlement, which was so-ordered and entered into on the record in open court, RRES expressly released all claims against Harry Fields and its contractors and plumbers, which includes Effective Plumbing (155485/2016, Carey Aff., Ex.Wat ii 6; Ex. X at ii 6; Ex. 00, Tr. 221 :22-222:22; and Ex. PP 495; 10-25). Therefore, the evidence establishes that RRES waived its right to bring any claims against Effective Plumbing in connection with the losses occurring at the restaurant in July 2013 and November 2013. To the extent that RRES argues that Mr. Curko did not have the authority to bind RRES with respect to the release (and there is no evidence to suggest that he did not), RRES was represented by counsel who made the Stipulation of Settlement in open court with apparent authority to do so (Will ofKanter, 209 AD2d 365, 365-366 [1st Dept [1994]). Therefore, the evidence conclusively establishes that: (i) the Stipulation of Settlement constitutes a valid and binding contract between RRES and Harry Field, (ii) the parties expressly conveyed an intention to release all contractors and plumbers, 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 13 of 15 Page 13of15 [*[FILED: 14] NEW YORK COUNTY CLERK 06/10/2020 12:17 P~ NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 including, specifically, Effective Plumbing, and (iii) the benefit to Effective Plumbing was immediate and not incidental. Finally, to the extent that RRES argues that the Stipulation of Settlement's reference to "plumbers" is ambiguous as to whether it includes Effective Plumbing, it is undisputed that Effective Plumbing was Harry Field's plumbing contractor at all relevant times and the evidence establishes that this was known to Mr. Curko and Ms. Altieri prior to the execution of the Stipulation of Settlement (155485/2016, Carey Aff., iJ 18, Ex. P, Tr. 22: 18; Ex. PP, Tr. 376:20-380: 17; Ex. QQ, Tr. 44: 12-49:6; and Exs. Y, Zand AA). Based on the foregoing, Effective Plumbing's motion for summary judgment is granted and the complaint is dismissed. Because the complaint is dismissed as against Effective Plumbing, the third-party complaint against All County seeking common law indemnification and contribution is dismissed as moot. However, inasmuch as the complaint is dismissed with prejudice and the record does not support a finding of frivolous or other conduct undertaken to delay or harass Effective Plumbing, Effective Plumbing's motion for sanctions pursuant to CPLR § 8303-a and 22 NYCRR § 130.1-1 is denied. Accordingly, it is ORDERED that Amguard's motion for summary judgment (650164/2015, Mtn. Seq. No. 002) is granted and RRES's complaint is dismissed; and it is further ADJUDGED and DECLARED that Amguard Insurance Company is not obligated to pay any additional monies for RRES' s alleged losses or damages in connection with the claims relating to the losses that occurred in July 2013 and November 2013; and it is further 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 14 of 15 Page14of15 [*!FILED: 15] NEW YORK COUNTY CLERK 06/10/2020 12: 17 PMI NYSCEF DOC. NO. 114 INDEX NO. 650164/2015 RECEIVED NYSCEF: 06/10/2020 ORDERED that Effective Plumbing's motion for summary judgment (155485/2016, Mtn. Seq. No. 003) is granted and RRES's complaint is dismissed; and it is further ORDERED that All County's motion to dismiss (155485/2016, Mtn. Seq. No. 004) is granted, and the Third Party Complaint is dismissed; and it is ORDRED that the Clerk of the Court is directed to enter judgment accordingly. 6/10/2020 DATE CHECK ONE: ANDREW BORROK, J.S.C. CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 650164/2015 RRES RESTAURANT GROUP, LLC vs. AMGUARD INSURANCE COMPANY Motion No. 002 002 15 of 15 D D OTHER REFERENCE Page 15of15

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