Opinion
15506-15507 Index No. 160322/14 595457/15 Case No. 2021–00256, 2020-00374
03-15-2022
Dominick BENEDETTO et al., Plaintiffs, v. HYATT CORPORATION et al., Defendants. Hyatt Corporation, sued herein as Hyatt Corporation, doing business as Grand Hyatt New York, et al., Third–Party Plaintiffs–Respondents, v. Securitas Security Services USA Inc., Third–Party Defendant–Appellant.
Marin Goodman LLP, Harrison (Russell S. Jamison of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for respondents.
Marin Goodman LLP, Harrison (Russell S. Jamison of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for respondents.
Webber, J.P., Kennedy, Mendez, Pitt, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 12, 2019, which, to the extent appealed from as limited by the briefs, granted so much of the motion of defendants/third-party plaintiffs Hyatt Corporation and Hyatt Equities, L.L.C. (together, Hyatt) as was for summary judgment on their third-party claim for breach of an insurance procurement obligation, and denied so much of the cross motion of third-party defendant Securitas Security Services USA Inc. (Securitas) as was for summary judgment dismissing that claim, unanimously affirmed, without costs. Order, same court and Justice, entered March 13, 2020, which, in effect, granted Securitas's motion for leave to renew and reargue, and upon renewal and reargument, adhered to the original determination, unanimously affirmed, without costs.
A party moving for summary judgment on its claim for failure to procure insurance meets its prima facie burden by establishing that a contract provision requiring the procurement of insurance was not complied with (see DiBuono v. Abbey, LLC, 83 A.D.3d 650, 652, 922 N.Y.S.2d 101 [2d Dept. 2011] ). The burden then shifts to the opposing party, who may raise an issue of fact by tendering the procured insurance policy in opposition to the motion (see Crespo v. Triad, Inc., 294 A.D.2d 145, 148, 742 N.Y.S.2d 25 [1st Dept. 2002] ). As with any summary judgment motion, the evidence submitted both in support of and in opposition must be tendered in admissible form (see e.g. Simmons v. Berkshire Equity, LLC, 149 A.D.3d 1119, 1121, 53 N.Y.S.3d 335 [2d Dept. 2017] ).
Securitas failed to raise an issue of fact precluding summary judgment in Hyatt's favor on their third-party claim for failure to procure insurance. The parties’ agreement required Securitas to procure $3 million worth of commercial general liability insurance coverage, but both the certificate of liability insurance and the policy declarations that Securitas submitted in support of its cross motion and in opposition to Hyatt's motion only indicate $2 million worth of commercial general liability insurance coverage. While the certificate of liability insurance also indicates that Securitas procured an additional $1 million in umbrella liability coverage per occurrence – for a total of $3 million of coverage – this does not raise an issue of fact as to whether Securitas procured the $3 million of commercial general liability insurance coverage it was required to procure by the parties’ agreement (see Prevost v. One City Block LLC, 155 A.D.3d 531, 536, 65 N.Y.S.3d 172 [1st Dept. 2017] ).
Securitas also failed to raise an issue of fact as to whether Hyatt waived the insurance procurement provision in the parties’ agreement (see generally Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 N.Y.3d 96, 104, 817 N.Y.S.2d 606, 850 N.E.2d 653 [2006] ; White v. Church of Our Lady of Sorrows, 255 A.D.2d 109, 679 N.Y.S.2d 381 [1st Dept. 1998] ). "A waiver, by definition, is the intentional relinquishment of a known right, it must be clear, unequivocal and deliberate (see Silverman v. Silverman, 304 A.D.2d 41, 46, 756 N.Y.S.2d 14 [1st Dept. 2003] ). Hyatt's annual acceptance of the certificates of insurance from Securitas constituted "mere silence" or, at most, "mistake, negligence, or thoughtlessness," but never amounted to any intentional act "to relinquish a known right" ( Matthew Adam Props., Inc. v. United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, 126 A.D.3d 599, 601, 6 N.Y.S.3d 233 [1st Dept. 2015] ). Securitas's alternative argument that Hyatt was comparatively negligent does not bar summary judgment in Hyatt's favor on this claim (see generally Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ).
The court properly adhered to its original determination on renewal and reargument, since the policy that Securitas submitted in support of its motion for leave to renew and reargue was also a commercial umbrella liability policy, and therefore could not satisfy its contractual obligation to procure $3 million worth of commercial general liability insurance coverage. To the extent Securitas sought to cure defects in its moving papers, raised by Hyatt in opposition, by submitting the complete policies in reply, this was new evidence submitted in reply that the court properly declined to consider (see e.g. Shultz v. Cambridge Dev., L.L.C., 200 A.D.3d 624, 625, 160 N.Y.S.3d 226 [1st Dept. 2021] ; Kuti v. Sera Sec. Servs., 182 A.D.3d 401, 404, 121 N.Y.S.3d 263 [1st Dept. 2020] ; Migdol v. City of New York, 291 A.D.2d 201, 201, 737 N.Y.S.2d 78 [1st Dept. 2002] ).