Opinion
Index No.: 400463/10 Motion Seq. Nos.: 002
03-24-2014
THE CITY OF NEW YORK, Plaintiffs, v. R.A.M USED AUTO PARTS, INC. and FIRST INDEMNITY OF AMERICA INSURANCE COMPANY, Defendants. FIRST INDEMNITY OF AMERICA INSURANCE COMPANY, Third-Party Plaintiff, v. RICHARD DIRUSSO, KATHLEEN DIRUSSO, and GARY ROTH, Third-party Defendants.
DECISION AND ORDER
Kathryn E. Freed, J.S.C.:
RECITATION, AS REQUIRED BY CPLR 2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.
| PAPERS | NUMBERED |
| NOTICE OF MOTION AND AFFIDAVITS ANNEXED | 1-2 (Exs. A-G) |
| NOTICE OF CROSS-MOTION AND AFFIDAVITS ANNEXED | 3 (Exs. A-C) |
| CITY'S ANSWERING AFFIDAVITS | 4 |
| FIRST INDEMNITY'S REPLY AFFIDAVITS | 5-6 |
| MEMORANDA OF LAW | 7-10 |
| EXHIBITS | 11-16 |
UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTION IS AS FOLLOWS:
In an action involving a contract governing the towing and disposal of abandoned cars in The Bronx, plaintiff, The City of New York (the City), moves, pursuant to CPLR 3212, for summary judgment as to liability against defendant First Indemnity of America Insurance Company (First Indemnity). First Indemnity cross-moves for summary judgment dismissing the complaint. Upon considering the parties' contentions and reviewing the applicable statutes and case law, this Court grants the City's motion and denies First Indemnity's cross-motion.
Background
On March 15, 2007, the City, through its Department of Sanitation (DSNY), and defendant R.A.M. Used Auto Parts, Inc. (RAM) entered into an agreement "[f]or furnishing all labor and material necessary and required to: remove, store, and dispose of derelict vehicles from the Borough of the Bronx" (the Agreement). Under the Agreement, RAM agreed to tow, dismantle, and dispose of derelict vehicles abandoned in The Bronx and pay the City $308.13 for each vehicle. In return, the City agreed to transfer its ownership interest in the vehicles, obtained under Traffic Law § 1224, which confers property rights of abandoned cars to the City. On June 15, 2007, First Indemnity issued a "Payment Guaranteed Bond," which incorporated the Agreement by reference, and guaranteed RAM's payments to the City under it.
On November 13, 2007, Norman Teitler (Teitler), executive director of Metropolitan NY Towing, Auto Body & Salvage Association, sent a letter to Ronald Blendermann (Blendermann), DSNY's chief contracting officer, requesting that the City terminate the Agreement and allow RAM and the City to find new terms because of changed conditions:
"Subsequent to the time that RAM entered into a contract with the City the basis upon which the contract and bid were issued has changed through no fault on behalf of [RAM] . . . At the present time [RAM] has to compete with other arms of the City [ ] and other governmental agencies that did not exist either at the time the Bid was responded to or even at the time the contract was signed. Within the next few days we will be making a formal request to the Commissioner of [DSNY] to terminate the current contract and reissue a new invitation for Bid"(Teitler November 13, 2007 letter to Blendermann, ¶¶ 1 and 2).
In a letter to the DSNY Commissioner dated November 18, 2007, Teitler followed up on his November 13, 2007 letter with more detail. Specifically, Teitler, on behalf on RAM, alleged that the Bronx District Attorney (Bronx DA), as well as the Fire Department of the City of New York (FDNY) and the New York City Police Department (NYPD) had begun towing cars that would otherwise be RAM's to tow under the Agreement. Teitler wrote:
"None of these vehicles are ever returned to [RAM]. Even if it is determined that a vehicle was not used in a crime; was not involved with criminal arson; or is not stolen - those vehicles never are returned to [RAM]. While DSNY made no express representations as to the number or quality or value of Derelict Vehicles available under the Contract, please remember [RAM] has been the contractor for [DSNY] for almost ten years and made their bid based on the historical performance under this program and believing that all tagged Derelict Vehicles would be available to them. The DSNY gave historical data in the bid package as well"(Teitler November 18, 2007 letter, ¶7).
Teitler goes on to ask the City, "on the basis of equity and contract law," (id., ¶9) to invoke Module D, ¶ 11.1.2 of the Agreement, which states:
"The contractor shall be entitled to apply to DSNY to have this Contract terminated by DSNY by reason of any failure in the performance of this Contract . . . if such failure arises out of causes beyond the control and without the fault or negligence of the Contractor. Such causes may include, but are not restricted to: acts of God or of the public enemy, acts of the government in either its sovereign or contractual capacity, fires, flood, epidemics, quarantine restrictions, strikes, freight embargoes, or any other cause beyond the reasonable control of the
Contractor."
Teitler states that RAM believes this provision is applicable because the towings done or requisitioned by the Bronx DA, the FDNY, and the NYPD are "acts of the government in either its sovereign or contractual capacity." Thus, Teitler asked the City to consider the letter to be a "formal request" to terminate the contract. In closing his appeal to the City, Teitler wrote: "Please understand that for [DSNY] to force [RAM] to continue with the Contract, with the conditions as they exist in the Fall/Winter of 2007, would force them into bankruptcy and cause the loss of almost twenty jobs" (id., ¶ 12).
Blendermann, DSNY's chief contracting officer, responded to RAM's requests by a letter dated January 29, 2008. As to RAM's request for termination due to changed circumstances, Blendermann wrote that, after receiving the letters, DSNY investigated RAM's claims and came to the following conclusions:
"The number of abandoned derelict vehicles has declined in all boroughs of [the] City over the last three years . . . . DSNY spoke with [the FDNY], which said that any vehicles they collected were immediately turned over to [the NYPD] . . . . DSNY also spoke with Detective Thau of the NYPD Bronx Auto Squad, who provided the following information regarding the removal of vehicles from The Bronx. Motion Towing (retained by the [the Bronx DA]) removed 122 vehicles for the DA's Office in 2007. Of these vehicles 48 arrests were made for insurance fraud and there are still cases pending for 2008 . . . . All public information factual matters listed above were known by - or available to - RAM at the time of its bid. DSNY does not, and cannot, know what factors RAM considered in formulating its bid price. However, a contractor's regret over a bid price is not a basis for DSNY to cancel the contract"(Blendermann January 29, 2008 letter, ¶¶ 3, 5-7).
In a letter dated January 7, 2009, Blendermann informed RAM that it is "in arrears with its payment obligations to DSNY . . . in the amount of $43,000" (Blendermann January 7, 2009 letter, ¶ 1). By a letter dated April 1, 2009, Blendermann wrote First Indmenity to inform it that "RAM is over 60 days in arrears under the Contract, and currently owes DSNY a total of $98,636.88" (Blendermann April 1, 2009 letter, ¶ 2). Moreover, Blendermann demanded that First Indemnity pay DSNY under the bond (id., ¶ 3). By letter dated April 3, 2009, First Indemnity requested a proof of loss. DSNY sent First Indemnity a proof of loss dated April 23, 2009 alleging a balance of $120,710.64.
By letter dated May 20, 2009, First Indemnity provided an unsigned release, which provided that First Indemnity would pay $120,710.64, while the City would assign First Indemnity its right to recover sums due under the Agreement and release any claims against First Indemnity relating to the Agreement. However, the release was never executed.
In a letter dated May 29, 2009, RAM's owner, third-party defendant Richard DiRusso, RAM informed the City that, due to its "current financial crisis . . . as of Monday, June 1st, 2009 we will be unable to pick up any more vehicles under our current contract" (Richard DiRusso May 29, 2009 letter, ¶ 1). RAM stopped picking up derelict vehicles under the Agreement on June 1, 2009.
On June 2, 2009, the City hired Allied Used Auto Parts and Salvage Corp. (Allied) to pick up derelict cars and Allied agreed to pay the City $85 per vehicle. By letter dated June 9, 2009, First Indemnity informed the City that it would not pay any of RAM's arrears, as it concluded that "the City wrongfully rejected the termination request" (First Indemnity June 9, 2009 letter, ¶ 2).
On February 22, 2010, the City filed its summons and complaint alleging that RAM breached the Agreement and that First Indemnity breached the guarantee. On April 2, 2010, First Indemnity commenced a third-party action against Richard DiRusso, Kathleen DiRusso, and Gary Roth. A default judgment was entered against RAM in this matter on May 25, 2011.
Discussion
"Summary judgment must be granted if the proponent makes 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact,' and the opponent fails to rebut that showing" (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010], quoting Alvarez v Prospect Hasp., 68 NY2d 320, 324 [1986]). However, if the moving party fails to make a prima facie showing, the court must deny the motion, "'regardless of the sufficiency of the opposing papers'" (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008], quoting Alvarez, 68 NY2d at 324).
The City argues that it is entitled to judgment on its second cause of action for liability against First Indemnity under the terms of the Payment Guaranteed Bond, which provides:
"the surety's obligation under the terms of this bond shall not be affected, lessened, diminished, or otherwise relieved by any reason or claim that [RAM] may have against the [the City] . . . which arises under [the Agreement] which reason or claim may provide a reason, basis, claim or ground for nonpayment by the Principal, or a claim or ground by the Principal that [the City] may have breached, violated or engaged in some act of omission or co-omission in violating [the Agreement])"(Payment Guaranteed Bond at 1-2).
Given this language, the City argues that First Indemnity's obligation to pay RAM's arrears exists without regard to whether the City breached its agreement with RAM, and without regard to whatever other defenses or claims RAM may have against the City. Thus, the City characterizes the guarantee as unconditional. The City cites to National Union Fire Ins. Co. of Pittsburgh, Pa. v Christopher Assoc., 257 AD2d 1, 12 (1st Dept 1999), which held that:
"[UJnder the terms of the performance bond, plaintiff's undertaking to pay upon the holder's declaration of a default is 'absolute, unconditional and irrevocable' and is not subject to 'any defense, set-off or counterclaim.' Under these circumstances, plaintiff was required to fulfill defendants' obligations under the notes, irrespective of its subjective assessment of the holder's declaration."
The City also argues that it is entitled to judgment against First Indemnity under the terms of the Agreement, which was incorporated by reference into the Payment Guarantee Bond. The City cites to Babylon Assoc. v County of Suffolk, 101 AD2d 207 (2d Dept 1984), for the proposition that First Indemnity's liability is coextensive with RAM's liability. Babylon Assoc. held that, where the bond incorporates by reference an underlying contract, and there is no language to the contrary, "the sureties' liability under the bond would appear to be coextensive with [the debtor's] liability under the contract" (id. at 218). The City concludes that, since First Indemnity's liability is coextensive with RAM's, First Indemnity is bound by RAM's default in this action.
In opposition, First Indemnity argues that the bond was not unconditional, as it authorizes payments only when RAM causes a loss or amount due "under the contract." Thus, First Indemnity argues that the bond is subject to the performance of the contract by both the City and RAM. By extension, First Indemnity argues that the City bears the burden of showing that: (1) RAM breached the Agreement; (2) the City fulfilled its contractual terms; and (3) that amounts or losses under the contract are due because of RAM's breach. However, First Indemnity fails to cite to any cases spelling out this standard.
First Indemnity further relies on Kipp Bros. v Hartford Acc. & Indent. Co. (63 Misc 2d 788, 789 [Sup Ct, Westchester County 1970]), which held that the "labor and material payment bond" at issue was "not an instrument for the payment of money only," as "[t]he bond, by its express provisions, incorporates by reference section 137 of the State Finance Law with all of its conditions, provisions and limitations. Therefore, on its face, the instrument refers to a State statute and is conditional upon full compliance with all of its provisions." However, First Indemnity fails to point to a statutory reference in the bond that would justify the analogy to Kipp Bros.
First Indemnity argues that the language in the bond cited by the City, rather than waiving its right to bring any defenses available to RAM, is merely a codification of the Court of Appeals holding in Walcutt v Clevite Corp., 13 NY2d 48 (1963). First Indemnity quotes to a section of Walcutt holding that:
"a guarantor when sued alone by the creditor cannot avail himself of an independent cause of action existing in favor of his principal as a defense or counterclaim. The reasons underlying this rule . . . may be summarized by the proposition that a guarantor may not take upon himself the election of remedies which rightfully belongs solely to his principal. Thus, a guarantor may not interpose his principal's defense of fraud since by so doing he would deprive the principal of his independent right to affirm or disaffirm. Likewise, he may not assert his principal's claim of breach of warranty since he might thus bar a large claim in canceling a small one. In all of these instances the claim is deemed to be an independent cause of action existing in favor of the principal, which he alone may or may not assert in what he deems to be his best interest"(id. at 55-56 [internal quotation marks and citation omitted]).
While this is passage is consistent with the City's position, First Indemnity contends that the Court further limited the impact of this principle in a way that contradicts the City's position. Specifically, the Court further held:
"There can be no doubt that a guarantor, when sued alone by the creditor, can successfully resist by showing that the creditor, on his part, totally failed to perform his obligations to the principal. In other words, the guarantor may always assert a total failure of consideration. This is because the guarantor is not liable
unless the principal is bound. By the same reasoning, the guarantor should be liable for no more than is his principal where there is a partial failure of consideration. By asserting such partial failure of consideration the guarantor does not avail himself of an independent claim belonging to the principal nor does he arrogate to himself a right of election which his principal enjoys. Where the consideration fails, either partially or entirely, neither the principal nor the guarantor is accountable for anything which has not been received. The question posed here has never before been squarely presented to this court. It has, however, been held below that a surety, when separately sued, may interpose as a partial defense the creditor's nonperformance of all the obligations of the contract toward the principal"
(id. at 56 [internal citation omitted]).
First Indemnity contends that it was never its intention to issue an unconditional guarantee. Moreover, First Indemnity argues, citing to Citibank v Plapinger, 66 NY2d 90 (1985) that the bond language is not sufficiently specific to constitute a waiver of its right to plead defenses. However, Plapinger held that a disclaimer in the guarantee at issue was "sufficiently specific to foreclose as a matter of law the defenses and counterclaims based on fraud, negligence or failure to perform a condition precedent asserted against [the] plaintiff banks . . ." (id. at 93).
First Indemnity also argues, citing to Milliken & Co. v Cans, 82 AD2d 781 (1st Dept 1981), that even if the bond were unconditional, it is still entitled to use RAM's defenses as its own. Miliken & Co. held, in a case involving an unconditional guarantee, that the guarantor "had the right to avail himself of any defense available to [the principal])" (id. at 781).
Next, First Indemnity argues that adopting the City's interpretation of the contract would produce an absurd result. Citing to Residential Holdings III LLC v Archstone-Smith Operating Trust, 83 AD3d 462, 465 (1st Dept 2011) (internal quotation marks omitted), First Indemnity reminds the court that "contracts should not be interpreted so as to produce absurd results." First Indemnity argues that adopting the City's position would, hypothetically, allow the City to maliciously destroy RAM's tow trucks and still allow the City to collect from First Indemnity, a result which, First Indemnity suggests, is absurd.
After arguing that it has the right to raise defenses available to RAM, First Indemnity argues the substance of those defenses. More specifically, First Indemnity argues that the City breached the Agreement in three ways: (1) by authorizing various government agencies and another towing agency to compete with RAM; (2) by unreasonably refusing RAM's request to terminate the Agreement; and (3) by failing to give RAM any payment or statement credit for derelict vehicles "taken from RAM."
First, as to the City's authorization of competition, First Indemnity acknowledges that no set number of derelict vehicles were offered to RAM, but notes that the Bronx only had one contract for removal of derelict vehicles. However, First Indemnity contends that, by funneling valuable vehicles to its own entities, such as the NYPD and The Bronx DA, and to another private contractor, Motion Towing, the City interfered with the contract in a way that was never contemplated in the contract bid documents. First Indemnity does not refer to any provision of the Agreement that purports to grant RAM with an exclusive right. However, First Indemnity argues that it would not have issued the bond had the agreement not been exclusive, and submits an affidavit from Paul Alongi (Alongi), a vice president and senior claims representative for First Indemnity, in which Alongi stresses the importance of the exclusive nature of the relationship, even though that exclusivity is never expressed in the Agreement:
"a primary factor in [First Indemnity's] underwriting criteria in issuing the Bond was the exclusive nature of the Contract and the fact that RAM would receive no competition in picking up the abandoned and derelict vehicles. The exclusive nature of the Contract was an essential factor in analyzing [First Indemnity's] risk as a surety. Had the Contract not been an exclusive agreement between RAM and the City, [First Indemnity] would never have issued the bond"(Alongi August 8, 2013 affidavit, ¶ 25).
First Indemnity contends that, in taking cars involved in investigations, the City did not follow Module C, ¶ 7.4 of the Agreement, entitled "Derelict Vehicles Claimed by an Interested Government Agency," which provides:
"[RAM] must release the Derelict Vehicle to an interested government agency without charge to the agency. On the Contractor's next monthly invoice, DSNY will give the Contractor a credit for the removal and storage fees given in Section 7.1 . . . that [RAM] incurs when an interested governmental agency has claimed a Derelict Vehicle without paying those fees."
While First Indemnity argues that the provision was violated by the City's failure to return these vehicles, the provision plainly does not place such an obligation on the City. First Indemnity also claims that there are 74 vehicles unaccounted for since they were not involved in an arrest. However, Module C, ¶ 7.4 is not limited to criminal investigations but instead provides a procedure for derelict cars to be claimed by "an interested government agency."
First Indemnity argues that the City unilaterally changed the terms of the contract by allowing other competitors to pick up cars. This, First Indemnity argues, citing Midland Steel Warehouse Corp. v Godinger Silver Art, 276 AD2d 341, 343 (1st Dept 2000), negated its obligation to pay RAM's arrears, "[b]ecause [since] the surety's obligation is distinct, the parties to the underlying contract may not unilaterally augment the surety's liability."
Second, First Indemnity argues that the City violated the contract by unreasonably refusing to terminate the Agreement. Here First Indemnity relies on Module D, ¶ 11.1.2 of the Agreement, which states that RAM is "entitled to apply to DSNY to have this Contract terminated by DSNY by reason of any failure in the performance of this Contract . . . if such failure arises out of causes beyond the control and without the fault or negligence of the Contractor." First Indemnity argues that RAM faced two unforeseen circumstances beyond its control: (1) various government agencies, and Motion Towing, coming into competition with RAM to pick up derelict vehicles in the Bronx; and (2) a dramatic fall in the price of scrap. First Indemnity argues that both of these circumstances were unforeseen, and that, at minimum, the propriety of the City's evaluation of RAM's request raises a triable issue of fact.
Third, First Indemnity argues that the City breached the Agreement by failing to give RAM any statement credit for derelict vehicles. This argument is based on First Indemnity's contention that Motion Towing took derelict vehicles that RAM had already removed. First Indemnity bases this factual premise on the deposition testimony of Richard DiRusso, although it does not offer a specific page number or a specific number of cars alleged to have been removed from RAM's possession by Motion Towing.
First Indemnity refers to Module C, ¶ 7.4 of the Agreement, which states that RAM must release vehicles to the City without any charge, but will be given credit for removal and storage fees, as defined by Module C, ¶ 7.1. Next, First Indemnity refers to the affidavit of Mark Suppa, DSNY's director of fiscal services. Suppa submitted invoices as exhibits to his affidavit, and First Indemnity notes that none of the invoices refer to the credits for RAM. Thus, First Indemnity argues that the City has violated Module C, ¶ 7.4 of the Agreement. At a minimum, First Indemnity contends that there is at least a question of fact as to whether such a violation occurred and that this precludes the granting of summary judgment in favor of the City.
First Indemnity asserts that, if this Court finds that it is obligated under the bond, the City nevertheless failed to mitigate its damages. Specifically, First Indemnity argues that the City should have declared RAM in breach prior to negotiating a payment plan rather than allowing RAM to continue contract performance. In support, First Indemnity cites to Hall & Co. v Continental Cas. Co., 34 AD2d 1028, 1029 (3d Dept 1970), affd 30 NY2d 517 (1972), which held that where a principal's "obligation was changed from making progress payments to making a lump-sum payment," there was a contractual alteration that discharged the surety's obligation as "a surety is discharged by any alteration of the contract to which his guarantee applied, whether material or not."
First Indemnity also argues that summary judgment would be premature as critical discovery remains outstanding, such as a deposition of DSNY's Blendermann. First Indemnity also notes that a subpoena to third-party Motion Towing remains unanswered.
Moving on from its opposition of the City's motion, First Indemnity argues that it is entitled to summary judgment dismissing the complaint. Initially, First Indemnity argues that, since the City did not follow the express prerequisites required to terminate the Agreement because of RAM's default, the City cannot pursue contractual damages against RAM for breach. For prerequisites, First Indemnity refers to Module D, ¶ 11.2 of the Agreement, entitled, "Termination For Cause." More specifically, First Indemnity refers to Module D, ¶ 11.2.3 of the Agreement, which provides:
"Before the Commissioner shall exercise his or her right to declare the Contractor in default . . . the Commissioner shall give [RAM] an opportunity to be heard, on two days notice, at which hearing the Contractor may have a stenographer present provided, however, that a copy of such stenographic notes, if any, shall be furnished to the Commissioner."
First Indemnity argues that it is undisputed that the City did not provide RAM with an opportunity to be heard regarding its default as outlined in Module D, ¶ 11.2.3. In support, First Indemnity cites to New Image Constr., Inc. v TDR Enters. Inc., 74 AD3d 680 (1st Dept 2010). In New Image Constr., the defendants' purported termination was held to be ineffective as the defendants did not serve "a 14-day notice to cure and written notice of termination which were contractual prerequisites to termination" (id. at 681).
In further support, First Indemnity cites to a federal district court case, General Ins. Co. of Am. v. K. Capolino Constr. Corp., 983 F Supp 403, 429 (SDNY 1997), which held, among other things, that the defendant housing authority had breached its contract with the defendant contractor; thus, the defendant housing authority was not entitled to demand performance, and the surety, which had stepped in to perform, was entitled to collect on its unjust enrichment claim.
Here, the City is entitled to summary judgment as to liability against First Indemnity. First, the language of the bond clearly waives any right that First Indemnity may have to argue defenses or counterclaims available to RAM. Thus, First Indemnity's clear obligation to pay RAM's arrears is unaffected by the many arguments First Indemnity makes regarding the parties' conduct under the Agreement. First Indemnity is incorrect that the language in the bond is a codification of Walcutt, supra, as the bond language is instead a waiver of the rights it would have had in the absence of that waiver. Milliken, supra, is also inapposite because no express waiver was present there, just an unconditional guarantee.
Contrary to First Indemnity's argument, the waiver does not produce absurd results such as that in the hypothetical First Indemnity offers, i.e., that where the City destroys RAM's equipment, First Indemnity would not have to pay the City under the bond because RAM would not have accrued any arrears, as it could not pick up any cars without equipment. Moreover, RAM would have recourse against the City under various legal theories, such as conversion. Thus, the waiver does not create an absurdity or an injustice.
Even if First Indemnity had not waived its right to raise defenses and counterclaims available to RAM, it fails to raise a question of fact as to whether the City breached the Agreement. First, City agencies picking up vehicles, or hiring another towing company to pick up vehicles, does not violate the Agreement, since the Agreement does not purport to be exclusive. Second, the City's refusal to terminate the Agreement does not violate the Agreement, as Module D, ¶ 11.1.2 only grants a right to "apply" for termination, but does not ensure that the application must be granted under any given set of circumstances. While there may circumstances in which the City's refusal to grant this application would constitute bad faith, this is not such a circumstance. Third, as to credits involving derelict vehicles, First Indemnity does not raise an issue of fact as to whether the City owed it credits for the removal of derelict vehicles. That is, it provides no evidence that it demanded credit for vehicles and was refused by the City. Since the City has not breached the Agreement, First Indemnity's reliance on K. Capolino Constr. Corp., supra, is misplaced.
Meanwhile, notice requirements under the Agreement for the City to terminate for cause because of default are irrelevant since the City never tried to terminate the Agreement before it was unilaterally terminated by RAM. As to First Indemnity's argument that the City failed to mitigate damages, mitigation touches on damages rather than liability, the subject of the motion and cross motion.
As the City is entitled to summary judgment as to liability, First Indemnity's cross motion to dismiss the complaint as against it is denied.
Conclusion
Therefore, in accordance with the foregoing, it is hereby:
ORDERED that plaintiff The City of New York's motion for summary judgment as to liability against defendant First Indemnity of America Insurance Company is granted; and it is further,
ORDERED that defendant First Indemnity of America Insurance Company's cross motion for summary judgment is denied; and it is further,
ORDERED that this constitutes the decision and order of the court.
ENTER
__________
KATHRYN E. FREED,
J.S.C.