AIG Prop. Cas. Co. v Harleysville Worcester Ins. Co.

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AIG Prop. Cas. Co. v Harleysville Worcester Ins. Co. 2021 NY Slip Op 31201(U) April 7, 2021 Supreme Court, New York County Docket Number: 651603/2019 Judge: Shawn T. Kelly 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 04/08/2021 12:41 PM NYSCEF DOC. NO. 136 INDEX NO. 651603/2019 RECEIVED NYSCEF: 04/08/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART IAS MOTION 57 -----------------------------------------------------------------------------------X AIG PROPERTY CASUALTY COMPANY F/K/A CHARTIS PROPERTY CASUALTY COMPANY Plaintiff, INDEX NO. MOTION DATE -v- MOTION SEQ. NO. 651603/2019 01/04/2021, 01/04/2021 002, 003 HARLEYSVILLE WORCESTER INSURANCE COMPANY, Defendant. DECISION+ ORDER ON MOTION -----------------------------------------------------------------------------------X HON. SHAWN TIMOTHY KELLY: The following e-filed documents, listed by NYSCEF document number (Motion 002) 46, 47, 48, 49, 50, 51,52, 53, 54, 55, 56, 57, 58, 59, 60,61,62, 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, 113, 114, 116, 118, 119, 120, 121, 122, 123, 124, 125 were read on this motion to/for JUDGMENT - SUMMARY The following e-filed documents, listed by NYSCEF document number (Motion 003) 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 115, 117, 126, 127, 128, 129, 130, 131, 132, 133 JUDGMENT - SUMMARY were read on this motion to/for Upon the foregoing documents, it is In motion sequence 002, Plaintiff AIG Property Casualty Company f/k/a Chartis Property Casualty Company ("AIG") moves pursuant to CPLR § 3212 granting AIG summary judgement against defendant Harleysville Worcester Insurance Company ("Harleysville") in the sum certain of $1, 717, 161. 78 together with interest from March 31, 2017. In motion sequence 003, Harleysville moves pursuant to CPLR 3212 for summary judgment dismissing Plaintiff's Complaint in its entirety and pursuant to C,PLR 3001 for a declaratory judgement stating that Harleysville is not obligated to satisfy the judgment entered against its former insured, Martack Corp. ("Martack"), in the subrogation action of AIG Property 651603/2019 AIG PROPERTY CASUALTY vs. HARLEYSVILLE WORCESTER Motion No. 002 003 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 04/08/2021 12:41 PM NYSCEF DOC. NO. 136 INDEX NO. 651603/2019 RECEIVED NYSCEF: 04/08/2021 Casualty Company flk/a Chartis Property Casualty Company a/s/o Joseph Edelman, et ano. v. Property Markets Group, Inc., et al. bearing New York County Index No. 157701/2015 (the "Subrogation Action"). The motions are consolidated for decision in the following order. Background In thehe present action, AIG is seeking a declaration pursuant to Insurance Law §3420(a)(2) that Harleysville was obligated to indemnify its insured, Martack, for an unsatisfied judgment in the subrogation action entitled AIG Property Casualty Company flk/a Chartis Property Casualty Company a/s/o Joseph Edelman, et ano. v. Property Markets Group, Inc., et al. bearing New York County Index No. 157701/2015 (the "underlying action") under a Commercial General Liability Policy issued by Harleysville to Martack Corp. bearing Policy No. MPA00000065958H for the Policy Period February 1, 2012 to February 1, 2013. At issue in this matter is Harleysville's denial of any duty to indemnify Martack. Harleysville denied coverage on the ground that the liability policy was cancelled on February 1, 2013, prior to the date of the subject loss, which was September 9, 2013. AIG contends that the denial of coverage was improper as the subject loss was discovered on September 9, 2013.but had occurred prior to February 1, 2013. In support of AI G's motion, it submits an expert Affidavit of Christopher R. Pushman, P.E, which states that Mr. Pushman was retained by the Building to inspect and determine the cause of the water damages (NYSCEF Doc. No. 67). Mr. Pushman concludedthat the excessive condensation water and leaking condition was caused by the HVAC system's chilled water pipes being improperly insulated and that condensation water had been leaking from the time the HV AC system was turned on, which was no later than when the subject apartment was moved 651603/2019 AIG PROPERTY CASUALTY vs. HARLEYSVILLE WORCESTER Motion No. 002 003 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 04/08/2021 12:41 PM NYSCEF DOC. NO. 136 INDEX NO. 651603/2019 RECEIVED NYSCEF: 04/08/2021 into, October 2006. AIG contends that the subje9t loss occurred continuously over a period of time where the Harleysville policy was in effect. In opposition, Harleysville contends that pursuant to its policy, the alleged "property damage" must have occurred during the relevant policy period for coverage to apply. Harleysville argues that the property damage occurred on or around September 9, 2013 and as such, there is no coverage as by that date, Harleysville had ceased covering Martack. In support of Harleysville's motion, Harleysville contends that it properly denied coverage to Martack and is not obligated to satisfy the judgment obtained against Martack in the Underlying Action. In opposition, AIG alleges that the damage occurred over a continuous time period during which the Harleysville policy was in effect. Analysis "'The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case"' (Santiago v Fi/stein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegradv New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum ofArt, 27 AD3d 227, 228 [1st Dept 2006], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]). The evidence presented in a summary judgment motion must be examined in the "light most favorable to the party opposing the motion" (Udoh v Inwood Gardens, Inc., 70 AD3d 563 1st Dept 201 O]) and bare allegations or conclusory assertions are insufficient to create genuine issues of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). 651603/2019 AIG PROPERTY CASUALTY vs. HARLEYSVILLE WORCESTER Motion No. 002 003 3 of 4 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 04/08/2021 12:41 PM NYSCEF DOC. NO. 136 INDEX NO. 651603/2019 RECEIVED NYSCEF: 04/08/2021 Neither of the pre-discovery summary judgment motions made have established aprima facie entitlement to judgment as a matter of law. There remain significant questions of material fact as to the date(s) over which the property damage occurred and further, whether during those dates the Harleysville policy was in effect. Accordingly, both Harleysville and AIG's motions for summary judgment are denied. It is hereby, ORDERED that AIG's motion for summary judgment is denied and Harleysville's motion for summary judgment is denied; and it is further 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 1418) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119) and 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)]. 4/7/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: SHAWN ~ CASE DISPOSED GRANTED 0 Tl~LLY, NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 651603/2019 AIG PROPERTY CASUALTY vs. HARLEYSVILLE WORCESTER Motion No. 002 003 4 of 4 D D J.S.C. 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