Levy v New York Cent. Mut. Fire Ins. Co.

[*1] Levy v New York Cent. Mut. Fire Ins. Co. 2023 NY Slip Op 23183 Decided on June 15, 2023 Supreme Court, Westchester County Giacomo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 15, 2023
Supreme Court, Westchester County

Eric Levy, Plaintiff,

against

New York Central Mutual Fire Insurance Company, Defendant.



Index No. 66227/2021

William J. Giacomo, J.

In this underlying action, plaintiff Eric Levy is seeking a declaration that defendant New York Central Mutual Fire Insurance Company (New York Central) is obligated to provide plaintiff with coverage, defense, and indemnification for an August 29, 2021 car accident under policy No. 80137820. In motion sequence 001, plaintiff moves, pursuant to CPLR 3212 and 3001, for an order granting summary judgment on the complaint and for the issuance of a declaratory judgment as to New York Central's responsibility. In motion sequence 002, New York Central cross-moves, pursuant to CPLR 3212 and 3001, for an order granting summary judgment dismissing plaintiff's complaint and for a declaratory judgment declaring that it is not obligated to provide plaintiff with a defense or indemnification under policy number 80137820 for the motor vehicle accident that is alleged to have occurred on August 29, 2021, as no Supplemental Spousal Liability coverage exists for this claim. The motions are consolidated herein for disposition. For the reasons set forth below, plaintiff's motion is denied, and New York Central's cross motion is granted.

Papers Considered/NYSCEF DOC NO. 5-14; 17-331. Notice of Motion/Plaintiff's Affidavit/ Memorandum of Law in Support/Exhibits A-F.2. Notice of Cross Motion/Statement of Material Facts/Affirmation of James E. Kimmel, Esq.,/Affidavit of Mark Grygiel/Memorandum of Law in support of cross motion and in opposition to motion/Exhibits A-G3. Reply Affirmation of Peter M. Agulnick, Esq.,/ Plaintiff's Memorandum of Law in Reply/ Plaintiff's Response to Statement of Material Facts4. Defendant's Memorandum of Law in Reply
Factual and Relevant Procedural Background

Plaintiff commenced this action by filing an amended complaint on November 10, 2021. [*2]Plaintiff resides in Westchester County. On August 29, 2021, while driving his car, plaintiff accidentally struck his wife Lisa Grauer (Grauer), who was standing in the driveway at a location in New Jersey. As a result of the accident, Grauer allegedly suffered serious injuries within the meaning of Insurance Law § 5102 (d), including a fracture. At the time of the accident, plaintiff had an active motor-vehicle insurance policy through New York Central with bodily-injury liability limits of $250,000.00 per person injured. Plaintiff and Grauer were the insured drivers under this policy. On October 7, 2021, Grauer filed a claim against plaintiff to New York Central, alleging that she was injured as a result of plaintiff's negligence. On October 8, 2021, New York Central informed Grauer it would not be able to consider any bodily injury claim against the policy because there was no Supplemental Spousal Liability (SSL) coverage on this policy.

Plaintiff subsequently filed this amended complaint, which contains two causes of action.In the first cause of action, plaintiff alleges that New York Central failed to provide proper notice, as required by Insurance Law § 3420 (g), that SSL insurance was available to plaintiff and Grauer. According to plaintiff, this failure to provide the requisite notice of coverage resulted in SSL coverage automatically attaching to the motor-vehicle policy. Plaintiff is seeking a declaratory judgment declaring that New York Central is obligated to: provide plaintiff with coverage for the August 29, 2021 accident under policy # 80137820, provide plaintiff with a defense and indemnify plaintiff for the August 29, 2021 accident up to the full bodily injury limits of the policy, and pay plaintiff's attorney fees, if any, that he incurs in the future due to any claim arising out of the August 29, 2021 accident.

In the second cause of action, plaintiff alleges that New York Central is liable for breach of contract in the amount of $250,000.00 for failing to provide plaintiff with coverage, a defense and indemnification.

Plaintiff moved for summary judgment on his amended complaint (motion sequence 001) and is requesting a declaratory judgment, as set forth in the first cause of action. Plaintiff submitted an affidavit, describing the events that transpired and alleges that he was not provided with proper notice of SSL coverage.

Plaintiff asserts that the notice of availability of supplemental spousal liability coverage was required to be on the front of the premium notice in boldface type and include, among other things, a concise statement that the coverage is available. Here, however, although plaintiff did get notification about the availability of such coverage, it was in the middle of the insurance policy, and not bolded. The notice allegedly did not contain the title supplemental spousal liability coverage, in bold and all caps, as required by 11 NYCRR § 60-1.6(b)(5).

In opposition to plaintiff's motion and in support of its own cross motion, New York Central avers that no SLL coverage exists for plaintiff's policy, that it did comply with all notification requirements, and that plaintiff declined to purchase SLL coverage. In support of its cross motion, New York Central submits the affidavit of Mark Grygiel (Grygiel), Vice President and Division Manager of Underwriting at New York Central. Grygiel states that it issued a renewal policy to plaintiff under policy number 80137820 with effective coverage from April 18 2021-April 18, 2022, which was in effect at the time of the accident. He continues that plaintiff was even notified twice about the possibility of purchasing SSL coverage but declined to do so. New York Central alleges that it issued a renewal policy to plaintiff on March 11, 2021, in advance of the current policy which was set to expire on April 18, 2021. This policy insured one vehicle and included an SSL endorsement and SSL coverage offered at $39.00. On April 20, [*3]2021, plaintiff amended his policy by adding coverage for an additional vehicle. On that date, New York Central issued a revised renewal policy adding the additional vehicle and included an SSL endorsement. The additional premium for the SSL coverage was $78.00, but plaintiff declined to purchase it.

The SSL notice is as follows:

"IMPORTANT NOTICEPOLICY NUMBER: 80137820INSURED: ERIC D LEVYTHIS IS NOT A BILLIF YOU WISH TO PURCHASE THIS COVERAGE, PLEASE CONTACT YOUR AGENTNew York State law requires that upon written request of an insured, and upon payment of the premium, an insurer issuing or delivering a policy that satisfies the requirement of Article 6 of the New York Vehicle and Traffic Law shall provide Supplemental Spousal Liability Insurance Coverage.Supplemental spousal liability insurance provides bodily injury liability coverage under a motor vehicle insurance policy to cover the liability of an insured spouse because of the death of or injury to his or her spouse, even where the injured spouse must prove the culpable conduct of the insured spouse.This coverage is included within the policy's bodily injury liability limits and does not increase the amount of those limits. For example:Insured's bodily injury policy coverage limit: $100,000/$300,000 Insured's bodily injury damage claim paid to spouse: $75,000 Insured's bodily injury policy coverage limit available to all other claimants subject to a maximum of $100,000 per person: $225,000This example assumes the spouse and other claimants involved in the accident have a right to sue the insured for economic loss or for non-economic loss (i.e., pain and suffering) sustained as a result of a "serious injury" as defined in Section 5102 (d) of the Insurance Law. It must also have been shown that there was negligence on the part of the insured.The additional premium for SSL coverage is $ 78.00. If you do not elect to purchase this coverage and do not remit the additional premium, SSL coverage is not included in your motor vehicle insurance policy."
NYSCEF Doc. No. 23.

In sum, according to New York Central, it is not required to provide plaintiff with a defense or indemnification for the motor vehicle accident as no SSL coverage existed for this claim. Furthermore, the insurance policy itself establishes that New York Central complied with the notice requirements.

In reply, plaintiff claims that he was never sent a proper SSL coverage notice. Among other things, plaintiff alleges that the SSL notice was required to be entirely in boldface type.

DISCUSSION

I. Summary Judgment

"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v Waisman, 39 AD3d 303, 306 (1st Dept 2007). The movant's burden is "heavy," [*4]and "on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party." William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 (2013) (internal quotation marks and citation omitted). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact." People v Grasso, 50 AD3d 535, 545 (1st Dept 2008) (internal quotation marks and citation omitted). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility." Ruiz v Griffin, 71 AD3d 1112, 1115 (2d Dept 2010) (internal quotation marks and citation omitted).

II. Insurance Law§ 3420 (g)

Insurance Law § 3420 (g) was amended by Chapter 584 of the Laws of 2002, to require insurance carriers to offer their insureds supplemental spousal liability (SSL) insurance for an additional premium. This SSL coverage provides drivers with the option to be insured in cases where their negligence causes death or injury to their spouse. Insurance Law § 3420 (g) specifically sets forth, in relevant part:

(g) No policy or contract shall be deemed to insure against any liability of an insured because of death of or injuries to his or her spouse or because of injury to, or destruction of property of his or her spouse unless express provision relating specifically thereto is included in the policy as provided in paragraphs one and two of this subsection. This exclusion shall apply only where the injured spouse, to be entitled to recover, must prove the culpable conduct of the insured spouse.(1) Upon written request of an insured, and upon payment of a reasonable premium established in accordance with article twenty-three of this chapter, an insurer issuing or delivering any policy that satisfies the requirements of article six of the vehicle and traffic law shall provide coverage against liability of an insured because of death of or injuries to his or her spouse up to the liability insurance limits provided under such policy even where the injured spouse, to be entitled to recover, must prove the culpable conduct of the insured spouse. Such insurance coverage shall be known as 'supplemental spousal liability insurance'.(2) Upon issuance of a motor vehicle liability policy . . . the insurer shall notify the insured, in writing, of the availability of supplemental spousal liability insurance. Such notification shall be contained on the front of the premium notice in boldface type and include a concise statement that supplementary spousal coverage is available, an explanation of such coverage, and the insurer's premium for such coverage. Subsequently, a notification of the availability of supplementary spousal liability coverage shall be provided at least once a year in motor vehicle liability policies issued pursuant to article six of the vehicle and traffic law, including those originally issued prior to January first, two thousand three. Such notice must include a concise statement that supplementary spousal coverage is available, an explanation of such coverage, and the insurer's premium for such coverage."Insurance Law § 3420 (g) (1), (2).

Supplemental spousal liability insurance, as set forth in 11 NYCRR § 60-1.6 states the [*5]following, in relevant part:

"This section implements Section 3420(a) and (g) of the Insurance Law, as amended by Chapter 584 of the Laws of 2002, which requires motor vehicle liability insurers to offer supplemental spousal liability (SSL) insurance to all policyholders in New York State who are covered under motor vehicle liability insurance policies that satisfy the requirements of Article 6 of the New York Vehicle and Traffic Law. This requirement applies to all policies issued or renewed that become effective on and after January 1, 2003. Section 3420(g)(2) provides that, pursuant to regulations promulgated by the Superintendent of Financial Services, a notification by the insurer to the insured shall include an explanation of the coverage and the insurer's premium for the coverage."***"(3) If an insurer has offered to the insured the option to purchase SSL insurance and the insured has not opted to purchase this insurance, the policy will continue to not include spousal liability coverage."(b) Notification about SSL insurance.(1) An insurer issuing motor vehicle liability insurance policies that satisfy the requirements of Article 6 of the New York Vehicle and Traffic Law shall, with all such policies issued or renewed that become effective on and after January 1, 2003, provide the notification to the named insureds under the policies of the availability of the optional SSL insurance.(2) The notification must be contained on the front of the premium notice in boldface type and include a concise statement that supplementary spousal liability insurance is available, an explanation of the insurance, and the premium for the insurance.(3) For the purpose of this section, premium notice shall mean any one or more of the following: declarations page, premium notice, premium bill, installment bill or any attachment thereto, generally used by the insurer to communicate information to the insured concerning an insured's coverages and corresponding premiums.(4) This notification shall be provided with all new policies and thereafter annually with all renewal policies.(5) An insurer may use the following sample notification or its substantive equivalent: SUPPLEMENTAL SPOUSAL LIABLITY COVERAGE . . . ."11 NYCRR § 60-1.6.

Both parties present the insurance policy in support of their summary judgment motions and do not dispute the contents. The Court finds that New York Central has made prima facie showing it is not obligated to provide plaintiff with indemnification or a defense for the motor vehicle accident occurring on August 29, 2021, because no SSL liability existed for this claim. Contrary to plaintiff's contentions, New York Central has established that it complied with the requirements related to the SSL as set forth in the Insurance Law and NYCRR and has demonstrated that plaintiff did not have SSL coverage during the time of the accident.

In accordance with Insurance Law § 3420 (g) (2), New York Central provided plaintiff with notice of the availability of SSL insurance. New York Central provided plaintiff with a concise statement that SSL was available, an explanation of such coverage, and the premium for the coverage. Plaintiff declined to purchase the SLL. "In the absence of an express provision in [*6]an insured's policy, a carrier is not required to provide insurance coverage for injuries sustained by an insured's spouse." Metropolitan Group Pop. v Kim, 127 AD3d 943, 945 (2d Dept 2015), citing quoting Insurance Law § 3420 (g).

Plaintiff claims that the SLL notice failed to comply with the notification requirements because the entire notification was not in boldface type, it was not on the front page, and because the notice did not contain the title Supplemental Spousal Liability Coverage in all capital letters and boldface. However, the Court is unpersuaded by plaintiff's arguments. As set forth above, the SLL notice was partially bolded, alerting plaintiff of an important notice. There is no requirement for the entire page to be bolded. Although the SLL notice was not page 1 of the 89-page document, it was page 1 of one of the various notices in the insurance packet. A look at the insurance policy indicates that every new section of the policy starts with page 1 and continues for however many pages address that topic. This does not conflict with 11 NYCRR § 60-1.6 (b) (3), which provides flexibility for the term premium notice. In addition, while not set forth in the decision, the sample notification provision, provided under 11 NYCRR § 60-1.6(b)(5) is identical to what New York Central provided to plaintiff in the policy. Even if it was not identical or did not contain the bolded and all capital title of Supplemental Spousal Liability Coverage, the regulation itself states that an equivalent may be used.

Further, although plaintiff cites to Osuna v Government Emples. Ins. Co. (2014 WL 1515563 [ED NY 2014]), affd 623 Fed Appx 3 (2d Cir 2015), this case is not comparable. In Osuna v Government Emples. Ins. Co., the plaintiff had claimed in his fourth cause of action that he did not receive any notification about the availability of the SSL insurance. The Court held that the fourth cause of action "does survive summary judgment because (1) as a renewal policy, he was entitled to the notification, set forth in the second sentence of Section 3420 (g) (2), and (2) there is a clear factual dispute regarding whether he received such notification . . .." Id. at *9. The Court noted that plaintiff had "submitted a sworn statement that he did not receive any notification of the availability of the supplementary spousal liability insurance in connection with his renewal policy." Id. Here, however, it is undisputed that plaintiff did receive notification of the availability of the supplementary spousal liability insurance.

Thus, in opposition, plaintiff fails to raise a triable issue of fact, and, in tandem, fails to make out a prima facie claim on his own motion for summary judgment. Accordingly, as no Supplemental Spousal Liability coverage exists for this claim, and New York Central complied with the SLL notification requirements, New York Central's cross motion is granted, granting it summary judgment and dismissing plaintiff's complaint, and plaintiff's motion is denied.

CONCLUSION

Accordingly, it is hereby,

ORDERED that plaintiff Eric Levy's motion (motion sequence 001), pursuant to CPLR 3212 and 3001, for an order granting summary judgment on the complaint and for the issuance of a declaratory judgment as to New York Central Mutual Fire Insurance Company's responsibility, is denied it its entirety; and it is hereby

ORDERED that New York Central Mutual Fire Insurance Company's cross motion (motion sequence 002), pursuant to CPLR 3212 and 3001, for an order granting summary judgment dismissing plaintiff's complaint and for a declaratory judgment, is granted; and it is further

ADJUDGED and DECLARED that defendant New York Central Mutual Fire Insurance Company is not obligated to provide plaintiff with a defense or indemnification under policy [*7]number 80137820 for the motor vehicle accident that is alleged to have occurred on August 29, 2021, as no Supplemental Spousal Liability coverage exists for this claim; and it is further

ORDERED that the case is dismissed, and the Clerk is directed to enter judgment accordingly.

White Plains, New York
June 15, 2023
HON. WILLIAM J. GIACOMO, J.S.C.