American States Ins. Co. v Graphic Arts Mut. Ins. Co.

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American States Ins. Co. v Graphic Arts Mut. Ins. Co. 2020 NY Slip Op 34125(U) December 10, 2020 Supreme Court, New York County Docket Number: 651372/2018 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: 1] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM INDEX NO. 651372/2018 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 12/11/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY lAS MOTION 59EFM PART HON. DEBRA A. JAMES PRESENT: Justice --------------------------.------------------------------------------X INDEX NO. AMERICAN STATES INSURANCE COMPANY and GENERAL INSURANCE COMPANY OF AMERICA, 651372/2018 MOTION DATE 03/02/2020 MOTION SEQ. NO. Plaintiffs, 004 -vGRAPHIC ARTS MUTUAL INSURANCE COMPANY, NOVA CASUAL TV COMPANY, PRAETORIAN INSURANCE COMPANY, and NAVIGATOR INSURANCE COMPANY, DECISION + ORDER ON MOTION Defendants. -------------------------------------------------------------------------- X The following e-filed documents, listed by NYSCEF document number (Motion 004) 97,98,99, 102, 103, 104, 105, 106, 107, 108, 109, 111, 112, 113 REARGUMENT/RECONSI were read on this motion for 100, 101, DERATION ORDER Upon the foregoing ORDERED and General is DENIED; renewal that plaintiffs Insurance Company it is American States of America's Insurance motion Company for reargument and, it is further ORDERED Insurance documents, that the motion Company and General is GRANTED; ORDERED of plaintiffs Insurance Company States of America for and it is further that the Decision/Order rescinded and vacated Insurance Company favor is DENIED; American dated January and the original to dismiss and/or motion 6, 2020 is of Navigators for a declaration in its and it is further 651372/2018 AMERICAN STATES INSURANCE VS. GRAPHIC ARTS MUTUAL Motion No. 004 1 of 11 Page 1 of 11 [*FILED: 2] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM INDEX NO. 651372/2018 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 12/11/2020 ORDERED directed that defendants Navigators to file and serve an answer within of a copy of this order with notice ORDERED that counsel preliminary conference 5, Insurance conference and it, is further to submit order or a competing order to 59nyef@nycourts.gov is 30 days of service of entry; are directed Company a proposed proposed and NYSCEF preliminary on February 2021. DECISION In this action American States Insurance pursuant reargue for a declaratory Insurance Company of America to CPLR 2221 and/or (Navigators) and renewal, to deny the motion pursuant obligated Insurance which was decided ask this court to vacate Company's (a) (1) and as against to provide 651372/2018 AMERICAN Motion No. 004 by such Order and this court granted (Navigators) . (7), to dismiss Navigators, a defense, action, entitled STATES INSURANCE or coverage, County VS. GRAPHIC 2 of 11 of. issuing a is not in connection of Nassau ARTS MUTUAL motion, and severed to the extent in its favor, ruling that Navigators the underlying Company's 6, 2020, and upon such reargument Insurance to CPLR 3211 declaration Navigators 6, 2020 decision, Navigators the complaint them leave to to dismiss. In its January defendant and General [e], granting to dismiss, plaintiffs (American States) for an Order, [d] and dated January plaintiffs (General) move renew defendant motion Decision/Order Company judgment, with v Commercial Page 2 of 11 [*FILED: 3] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM NYSCEF DOC. NO. 120 Concrete INDEX NO. 651372/2018 RECEIVED NYSCEF: 12/11/2020 Corp., Index No.: 608267/2016, Supreme Court, Nassau County. On the original coverage. motion, Specifically, this court considered whether in the underlying an alleged accident or loss as defined the period, from policy September finding that there were no allegations the policy period, 2016 under to the question of action involved the policy, September during 2017. of loss that occurred In during the court found: "Contrary to plaintiff's argument that it, 'is not clear when the damaging conduct occurred,' the complaint alleges that the 'accident'- the clogged drain and subsequent flooding - occurred in August, 2015, well before the effective date of the policy. The specifically identified damages, claimed by the County, the approximately $4.8 million for remediation work completed in March 2016, also do not suggest any reasonable possibility that property damage occurred during the policy period. Although the complaint alleges that county will incur additional damages for future remediation work, it does not allege what work will be required or when such work will occur. Notably, as of February 2018, as County asserted in its motion to amend the complaint to add Ready Mix as a defendant, the alleged 'Phase II' remediation work still had not commenced. Thus," there are no allegations of additional damages occurring during the policy period. Also contrary to plaintiffs' apparent argument that County's request for injunctive relief demonstrates that damage continues, there are no allegations that the alleged illegal dumping has continued; the injunctive relief was requested to avoid any future reoccurrence " (NYSCEF docket to dismiss] 651372/2018 u"".:; __ •.1_ at 10). AMERICAN ftl\~ no. 94 [Decision and Order on Navigators' STATES INSURANCE 3 of 11 VS. GRAPHIC ARTS MUTUAL motion [*FILED: 4] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 12/11/2020 In support entitled of their motion, to the requested plaintiffs' dumping INDEX NO. 651372/2018 argument plaintiffs relief on four grounds. of dumping an inference plaintiffs' of the policy, in 2018, after the policy that there was dumping and, therefore, The crux of is that there is clear evidence in 2015, prior to the period evidence argue they are a real possibility to coverage during and also period, the policy of coverage, for a defense of the creating period entitling in the underlying action. In support of their first ground, plaintiffs this court misapprehended Underlying Action purportedly damages (as hereinafter caused by the August claimed by the County basin and drainage concrete that the damages claimed in the are not the damages 2015 flood, but instead, of Nassau system purportedly slurry by Commercial Concrete) defined) state that Concrete and New York Ready Mix, Inc. are damages the to its catch caused by the release Corp. of (Commercial (Ready Mix) into the system. Second, allegations plaintiffs in the pleadings be reasonably Commercial state that this court overlooked read to include the release Concrete date the underlying system, action of concrete and Ready Mix, and causing catch basin and drainage 651372/2018 AMERICAN Motion No. 004 of the underlying damages the that could slurry by to the right up to and through the action was commenced. STATES INSURANCE VS. GRAPHIC ARTS MUTUAL 4 of 11 Page 4 of 11 [*FILED: 5] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM INDEX NO. 651372/2018 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 12/11/2020 "The County's allegation that damages continue to occur is evidenced by the request for injunctive relief, where the County alleges as follows: 'The County is further entitled to prospective injunctive relief against Commercial Concrete compelling it to adjust its operations so that, in the future, illegal discharge of concrete or a concrete-water mixture into the County's Storm Water System does not occur' The clear inference from this allegation is that the damaging conduct was continuing as of the date of the Verified Complaint" (memo in support Third, at 3). plaintiffs argue that this Court misapprehended New York case law compels allegations of the complaint reasonable possibility underlying complaint injury-in-fact in the underlying of coverage during action and that whenever does not preclude occurring may be triggered" the possibility the policy period, the "suggest a the of the policy (memo in support at 1-2). The fourth ground overlooked the duty to defend whenever that the motion that movants urge is that this Court of the County to amend its complaint, that the Court in the underlying action granted the motion, and to add: "allegations that Commercial Concrete and/or Ready Mix have continued their activities regarding the washing of concrete mixing trucks at the Facilities andl or in the public roadway near the Facilities in a manner that causes concrete and concrete slurry to enter into the County's Rushmore Street Drain and storm water basin No. 51" (memo in support 651372/2018 AMERICAN Motion No. 004 at 2). STATES INSURANCE VS. GRAPHIC ARTS MUTUAL 5 of 11 Page 5 of 11 [*FILED: 6] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM INDEX NO. 651372/2018 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 12/11/2020 Plaintiffs granted argue that their motion because, submitted, new evidence action making release after the motion basin and drainage during to dismiss was fully and papers were filed in the underlying it clear that the County was alleging of Concrete through to renew should be Slurry and resulting system was occurring, the date the Underlying the policy damage period Action that the to the catch "right up to and was commenced, of Navigators' policy" including (memo in support at 2). In their reply, plaintiffs dispute that the County, specific March evidence plaintiffs evidence period - September The County Ready Mix damaged County alleges it started "continued." that there its catch basin and drainage illegal dumping The County started The County alleges that this continued ARTS MUTUAL 6 of 11 and The prior to does not allege it specifically VS. GRAPHIC the Concrete system. rather, STATES INSURANCE policy Action, and stopped; 651372/2018 AMERICAN Motion No. 004 is no 16, 2017. Slurry by Commercial right into 2018. 1, 2018, 1, 2018. Rather, that, in the Underlying of Concrete offered during Navigators' 16, 2016 to September that the alleged 2015 and continued simply argues illegal dumping does not on March 26, 2018, and November alleges release Action, illegal dumping urge that Navigators of alleged purported in the Underlying of alleged 6, 2018, October argue that Navigators alleges that it alleged Page 6 of 11 / [*FILED: 7] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM INDEX NO. 651372/2018 NYSCEF DOC. NO. 120 illegal RECEIVED NYSCEF: 12/11/2020 dumping is continuing such allegations, plaintiff's to cause the same damages. Upon further argue that: "Given the evidence that there was dumping of Concrete Slurry before Navigators' policy period, the evidence that there was dumping of Concrete Slurry after Navigators' policy period, and the allegation that the dumping 'continued,' discovery may show that the dumping occurred at some point from September 16, 2016 to September 16, 2017 - during Navigators' policy period" (memo in reply at 7). In support the affidavits of their renewal motion, submitted motion to dismiss nature of the dumping: plaintiffs in the underlying was fully submitted, action, demonstrate argue that after the the ongoing In addition, on January 17, 2019, after the motion to dismiss was fully submitted, the County served and filed in the Underlying Action, the affidavit of Kevin Cummings, a Special Investigator for the Bureau of Claims and Investigations in the Nassau County Attorney's Office. This affidavit shows that the County's allegations in the Underlying Action include that the alleged illegal dumping continued, even after the Underlying Action was commenced. It also states that, "[o]n November 15, 2018, I observed hardened concrete in the catch basin." In the Underlying Action, on January 29, 2019, the County submitted the affidavit of Edward A. Smith, Esq., in further support of the motion for a preliminary injunction. Mr. Smith argued that the County has shown that "Commercial Concrete is washing its concrete trucks in a manner such that the resulting concrete slurry is discharged into the public roadway." He uses the term "is", rather than "was", to argue it was still ongoing (memo in support Plaintiffs at 6). argue that these documents time they were required 651372/2018 AMERICAN did not exist at the to file their opposition STATES INSURANCE vs. GRAPHIC ARTS MUTUAL Motion No. 004 7 of 11 to the motion, Page 7 of 11 [*FILED: 8] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM INDEX NO. 651372/2018 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 12/11/2020 and therefore motion. were unavailable Thus, based upon the liberal defend, and because are entitled, Navigator's motion plaintiffs standard this is pre-discovery, • upon reargument In opposition, policy for use in opposition of duty to plaintiffs and renewal, of to dismiss. Navigators essentially and that plaintiffs for allegations argue they to a denial argues offer no facts that there was dumping period, to the of dumping that during offer only factual the support in 2015 and 2018, and not in between: "Plaintiffs attempt to convince the Court they are entitled to reargument or renewal of the motion to dismiss by alleging that these "new facts include [sic] the Decision and Order dated May 10, 2019. . has shown that the allegedly illegal dumping of Concrete Slurry continued to as late as November 1, 2018." Moving Memo at 12.' This selfserving description of Nassau County's new allegations is incorrect. The Underlying Order, the Cummings Aff., and the November 2018 Violation show that allegedly illegal dumping of concrete slurry occurred between March 2018 and November 2018. Plaintiffs have not identified a single allegation by Nassau County that any illegal dumping occurred during the period from September 30, 2016 and September 30, 2017" (memo in opp at 9-10). Discussion C.P.L.R. 2221 "(d) A motion (d) provides, in relevant part, as follows: for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining 651372/2018 AMERICAN Motion No. 004 STATES INSURANCE vs. GRAPHIC ARTS MUTUAL 8 of 11 Page 8 of 11 [*FILED: 9] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM NYSCEF DOC. NO. 120 INDEX NO. 651372/2018 RECEIVED NYSCEF: 12/11/2020 the prior motion, but shall not include not offered on the prior motion; and any matters of fact 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals." The Court denies plaintiffs' there is no merit misapprehended C.P.L.R. "(e) A motion 1. to their argument either 2221 motion for reargument, as that this court the facts or law. [e] provides in relevant part: for leave to renew: shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion." Pursuant [e] [2], a motion for leave to renew "shall be based upon new facts not offered on the prior motion or shall that would demonstrate change 61 AD3d motions ~2221 change the prior determination that there has been a change the prior determination" 51, 54 [1st Dept 2009]). of the motion Nanni, to C.P.L.R. 870, 871 generally 65137212018 AMERICAN Motion No. 004 (see Ramos v City of New York, The Court may grant the branch to renew in the interest 307 AD2d in the law that would of justice [1st Dept 2003] (see Mejia ["Although renewal should be based on newly discovered STATES INSURANCE VS. GRAPHIC ARTS MUTUAL 9 of 11 v facts that Page 9 of 11 [*FILED: 10] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM INDEX NO. 651372/2018 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 12/11/2020 could not be offered on the prior motion courts have discretion such a motion affidavits Bureau to relax this requirement in the interest On its motion Attorney's to renew, plaintiffs the underlying action occurred complaint triggered during during the possibility Navigator's the parties, 2018 continued allegations to dismiss. Action that the injury-inthe policy N.Y. Mut. 651372/2018 AMERICAN Motion No. 004 is Ins. Co. v Royal of plaintiffs Ins. Based upon the submissions through has continued of at least 2018, combined with and that there is no indication the dumping STATES INSURANCE of allegations Doc No. 112 [liThe allegations dumping alleges to renew, 6, 2020, and shall deny that the illegal dumping of prior dumping, that the County of [1St Dept 1997]). (see NYSCEF illegal that the underlying the Court finds that there are factual in the Underlying through Where in Ins. Co. v PSM Ins. Co., 259 AD2d the Order dated January motion County or incidents the subject policy period, The court shall grant the motion shall vacate for the was submitted, the policy period. (American Empire Co., 238 AD2d 261 Investigator that an incident [1st Dept 1999]; Greater 341, 343 argue, based upon the in the Nassau after this motion does not preclude fact occurred and to grant and of Edward A. Smith, Esq., submitted there is a real possibility dumping a Special and Investigations Office, [e]), of justice"]). of Kevin Cummings, of Claims (see CPLR 2221 VS. GRAPHIC stopped ARTS MUTUAL 10 of 11 or that there was a Page 10 of 11 [*FILED: 11] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM INDEX NO. 651372/2018 NYSCEF DOC. NO. 120 moratorium RECEIVED NYSCEF: 12/11/2020 on dumping, compel the conclusion and facts in the Underlying Action possibility The facts of dumping 2018, before during of coverage"]). and after the policy the term of the policy undermining the possibility suggest that the pleadings a reasonable in 2015 and raise a question about dumping and there are no facts offered that an injury occurred during the term of the policy. 12/10/2020 DATE CHECK /" ~ BRA It.:JJA:MES, #9' J.S~ ..~ CASE DISPOSED ONE: X 651372/2018 AMERICAN Motion No. 004 D ~ INCLUDES DISPOSITION IN PART SUBMIT ORDER ~. FIDUCIARY TRANSFER/REASSIGN STATES INSURANCE . GRANTED DENIED SETTLE ORDER APPLICATION: CHECK IF APPROPRIATE: GRANTED NON-FINAL VS. GRAPHIC ARTS MUTUAL 11 of 11 APPOINTMENT D D OTHER REFERENCE Page 11 of 11

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