State Farm Fire & Cas. Co. v Tamagawa

Annotate this Case

Download PDF

State Farm Fire & Cas. Co. v Tamagawa 2023 NY Slip Op 33118(U) August 25, 2023 Supreme Court, Kings County Docket Number: Index No. 510977/2021 Judge: Sharon A. Bourne-Clarke 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. INDEX NO. 510977/2021 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/07/2023 A DEFAULT JUDGMENT MOTION PART of the Supreme Cpurt ofthe State of New York, held in and for the County of Kings. al the Courthouse. at 320 Jay Street. Borough of Brooklyn. City and S ate of New York. on the 10th of July, 2023 PRESENT: HON. SHARON A. BOURNE-C ..,ARKE SUPREME COURT OF THE STATE OF NE~ YORK COUNTY OF KINGS: DJMP STATE FARM FIRE & CASUALTY COMPA ~y a/s/o MALIK GRAVES-PRYOR, DECISION AND ORDER Plainti f, Calendar No. Index No. 510977 /2021 -againstTAKUTAMAGAWA Defendant s). The following papers were read on this motion pursuant to CPLI 22 I9 (a): Papers NYSCEF Doc. Nos. Notice of Motion - Order to Show Cause - Exhibit! and Affidavits Annexed Answering Affidavits and Exhibits Replying Affidavits and Exhibits o(s). 59-83 No(s). No(s). FA('T Plaintiff STATE FARM FIRE & CASUALTY COMPANY a/s/o MALIK GRAVESPRYOR (hereinafter referred to as "STATE FARM"') is a foreign corporation doing business in the State of New York. Defendant TAKL TAMAGAWA (hereinafter referred to as "TAMAGAWA") is a resident of Kings County State of New York. Defendant resides in a unit located at I Hanson PL, Apt 16E, Brooklyn, New York. Subrogor and purported Intervenor 1 [* 1] 1 of 7 INDEX NO. 510977/2021 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/07/2023 Plaintiff MALIK GRAVES-PRYOR(hereinafte referred to as "GRAYES-PRYOR", is the owner of a unit located at 1 Hanson Pl., Apt. 15D, Bro klyn, New York. In June, 2018, water loss occurred at the uilding located at 1 Hanson Pl., which originated in Apt 16E, in which the defendant resided. Th water loss led to extensive water damage in the apartment unit belonging to the Subrogor. The ubrogor submitted a claim to his insurer STATE FARM, who paid the insurance claim for the d ages to his real and personal property. Plaintiff STATE FARM submitted that the water loss which led to the damage was the result of the negligence of defendant TAMAG WA. Plaintiff submitted that TAMA GAWA was negligent and careless in the maintenance of th plumbing in his unit, Apt l 6E, which led to the water loss. Plaintiff submits that due to their ins ranee policy. they have become subrogated to all rights of their Subrogor to recover against T MAGAWA for monies paid in the underlying insurance claim. Plaintiff sued TAMAGAWA, eeking damages of at least $600,790.96. Plaintiff initiated this cause of action on ay 10. 2021. Defendant filed an answer on July, 6, 2021. Defendant sought dismissal of the a tion and asserted several affirmative defenses; including that the Court lacks personal jurisd'ction over the defendant due to non-service of process. Defendant moved to dismiss the action n September 29. 2021, alleging that there was no service of the Summons and Complaint, and th refore the Court had no personal jurisdiction. On January 31, 2022, Plaintiff filed an affirmation in opposition to Defendant's motion to dismiss. The motion was adjourned to March 6, 2022, by stipulation between the parties. Defendant's motion to dismiss was denied in an order by Ho . Carolyn E. Wade, dated March 29, 2022. 2 [* 2] 2 of 7 INDEX NO. 510977/2021 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/07/2023 Subrogor and purported Intervenor P aintiff MALIK GRAYES-PRYOR moved to intervene in this action on August 10, 2022. G YES-PRYOR wished to assert his rights against defendant TAMAGAWA, and assert claims a ainst plaintiff STATE FARM for bad faith and racially discriminatory insurance claims handlin practices.GRAYES-PRYOR submitted that he had a right to intervene because STATE FA was litigating in his name. On August 3, 2022, Defendant TAMAGAWA filed an affirmation i opposition to the motion to intervene. GRAYESPRYOR withdrew his motion to intervene on ugust 16, 2022. On the same day, GRAYES- PRYOR, filed another notice of motion to interv ne, seeking to move the Court on September 14, 2022. The underlying action between STATE ARM and TAMAGAWA was discontinued by stipulation between the parties, and filed in NY CEF on January 20, 2023. Intervenor Plaintiff GRAYES-PRYOR, proposed an emergency Order to Show Cause (OTSC), filed on February 16, 2023. Interven r Plaintiff sought a temporary restraining order (TRO), to restrain the parties from entering into ny settlements of the underlying claims, prior to a hearing on Intervenor Plaintiffs motion to int rvene. The emergency OTSC was signed by this Court on March 21, 2023. On May 15, 2023, laintiff STATE FARM filed an affirmation in opposition to the OTSC. On May 22, 2023, defi dant TAMAGAWA also filed an affirmation in opposition to the OTSC. Intervenor Plaintiff G YES-PRYOR filed a reply to STATE FARM and TAMAGAWA on May 24, 2023. Interv or Plaintiff asserted that STATE FARM and TAMAGAWA improperly attempted to disc ntinue the action before allowing GRAYESPRYOR's motion to intervene to be heard. 3 [* 3] 3 of 7 INDEX NO. 510977/2021 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/07/2023 A UMENTS GRAYES-PRYOR argues that the stipul tion to discontinue between STATE FARM and T AMAGAWA is prejudicial, asserting that the i tention behind the stipulation to discontinue was to avoid litigating the negligence claims an to deny GRAVES-PRYOR an opportunity to prosecute his own negligence claims. He further argues that he is the only p that can adequately represent his interests in this action, and that STATE FARM has no right of subrogation until and unless he is made whole for all damages to his property. Interveno Plaintiff cites Fasso v Doerr, 12 NY3d 80 [2009], which quotes from Winkelmann v Excel ior Ins. Co. , 85 NY2d 577, 580 [1995], and states "There is, however, an important limitatio on recovery under the doctrine of equitable subrogation. If "the sources of recovery ultimat y available are inadequate to fully compensate the insured for its losses, then the insurer--who as been paid by the insured to assume the risk of loss--has no right to share in the proceeds of the insured's recovery from the tortfoasor"" . Plaintiff argues that GRAYES-PRYOR ould not be prejudiced by a discontinuance of their action against TAMAGAWA. Defendant argues that GRAYES-PRYO 's claims are time barred by the three-year statute of limitations for negligence under NY CPLR § 14 (4). There are three main issues the Court st contend with in this case. Whether the made whole doctrine allows GRAVES-PRYOR to ntervene in this action. Whether allowing the voluntary discontinuation of the action by TATE FARM and TAMAGAW A prejudices 4 [* 4] 4 of 7 INDEX NO. 510977/2021 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/07/2023 GRAYES-PRYOR. And whether GRAYES-P YOR's claims are time barred by the statute of limitations. The made whole doctrine and the doctri e of equitable subrogation have been interpreted in the Court of Appeals in the cases of Fasso and Winkelmann cited by GRAYES-PRYOR. Neither case deals with quite the same circumstances a in the present case. In Fasso the court held that the made whole doctrine did not preclude an ins rer from initiating a subrogation action against a tortfeasor, when the insured and the tortfeaso had already settled their claim. The court in Winkelmann allowed for an insurer to pursue a ubrogation action against a tortfeasor even when the insured had not been compensated for all th losses incurred, but when the insured had been compensated for those losses that the insurance olicy covers. The issue before this Court is whether an · sured party can intervene in a subrogation action by its insurer against an alleged tortfeasor, when he underlying insurance claim remains unsettled. The question for the Court is whether th insured has been compensated for those losses that the insurance policy covers. According to th letter dated February 15, 2022, thus far STATE FARM has paid a total of $606,266.47 in indemn ry payments to GRAYES-PRYOR. This includes $167,369.01 for building damages, $42,152.7 abatement, and $379,699.31 for Additional for contents damages, $17,045.40 for mold iving Expenses (ALE). The insured has also submitted a claim for unpaid expenses which include $996.38 for replacement costs for his contents, and $60.584.70 for additional ALE be1etits. The clause relating to ALE benefits in t e insurance policy states "when a Loss Insured causes the residence premises to become uninh · bitable, we will cover the necessary increase in cost to maintain your standard of living for up to 24 months. Our payment is limited to incurred 5 [* 5] 5 of 7 INDEX NO. 510977/2021 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/07/2023 costs for the shortest of: (a) the time required tor pair or replace the premises; (b) the time required for your household to settle elsewhere; or 24 mo ths." The motion papers submitted by GRAV S-PRYOR do not provide sufficient evidence to show that he has not been fully indemnified pur uant to the insurance policy. No receipts or bank statements have been submitted to show a "nee ssary increase in cost", in the 24 months after he left his residence at 1 Hanson Pl.. Those claims can properly be brought in a separate breach of contract action against STA TE FARM, if they r main unsettled. The Court in Winkelmann cited from Fe Ins. Co. v Arthur Anderson & Co. , 75 NY2d 366, 374 and states "The claims of the insurer for amounts paid by it and the insured's claim for uninsured losses are divisible and independent. a d "[p]ermitting the insurer to sue ... as equitable subrogee does not affect the insured's right o sue for the amount of the loss remaining unreimbursed"''. Winkelmann, supra at 582. Although this section in the Winkelma opinion is in relation to the insured suing an alleged tortfeasor, the principle still applies. G YES-PRYOR 's rights to sue for unreimbursed losses pursuant to the insurance policy, against S ATE FARM are not prejudiced by a settlement. or a stipulation of discontinuance between S ATE FARM and TAMAGAWA. Therefore, GRAVES-PRYOR's claims as against STATE ARM are DISMISSED. The Court considers the rest of GRAVE -PRYOR·s claims as a negligence action against TAMAGAWA, which is time barred by the statu e of limitations, pursuant to NY CPLR § 214 (4). Therefore GRAVES-PRYOR's claims against T MAGAWA are DISMISSED. GRAVES-PRYOR's motion to intervene is DENIED. 6 [* 6] 6 of 7 INDEX NO. 510977/2021 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/07/2023 GRAVES-PRYOR' s motion to vacate th STATE FARM and TAMAGAWA Stipulation to Discontinue is DENIED. All other requests are DENIED. This constitutes the Decision and Ord of the Court. SH RON A. BOURNE-CLARKE, A.J.S.C. 7 [* 7] 7 of 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.