Tower Ins. of N.Y. v. Joselyn Grocery Corp.

Full title: TOWER INSURANCE COMPANY OF NEW YORK, Plaintiff, v. JOSELYN GROCERY CORP.…

Court: Supreme Court of the State of New York, New York County

Date published: Jun 20, 2008

2008 N.Y. Slip Op. 31745 (N.Y. Sup. Ct. 2008)

Opinion

0110214/2005.

June 20, 2008.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MARTIN SHULMAN, J.

Plaintiff, Tower Insurance Company, moves for an order pursuant to CPLR 3212 granting it summary judgment "declaring that it has no duty to defend or indemnify Joselyn Grocery Corp. in an action captioned Olga Zuniga v. Joselyn Grocery Corp., 2238 M LLC and Rose Mack Management, pending in the Supreme Court of the State of New York, County of Bronx under index number 15120/05."

Plaintiff insurance company brought this declaratory judgment action to determine coverage issues in the underlying personal injury action. The facts below, which are not disputed by defendants (except for the identity of the landlord, see infra), are taken from the supporting affidavit of plaintiff's vice president for liability claims and the supporting affirmation of plaintiff's attorney.

In May 2005 Olga Zuniga ("Zuniga") brought the underlying action to recover damages for personal injuries allegedly sustained on July 26, 2004 when she tripped on plastic wrapping and fell to the sidewalk in front of the entrance to a grocery store located at 2238 Morris Avenue in the Bronx (the "premises"). Joselyn Grocery Corp. ("Joselyn"), which owned the grocery store, was a tenant of the ground floor of the premises. 2238 M LLC ("LLC") was the landlord (defendants correctly state that the landlord named in the lease with Joselyn was 1700 Development Co. Inc., claimed to be LLC's parent company; see defendants' exhibit C). Rose Mack Management ("Rose") was LLC's managing agent.

In 2003 plaintiff issued a commercial general liability insurance policy (the "policy") to Joselyn which covered the premises from November 20, 2003 to November 20, 2004 (the policy was apparently renewed thereafter). By endorsement dated April 24, 2005 the policy was amended to include LLC as an additional insured. Plaintiff was first notified of Zuniga's accident on May 2, 2005, when it received a tender letter dated April 21, 2005 from UTC Risk Management ("UTC"), the third-party claims administrator for Rose and LLC, requesting that plaintiff defend and indemnify Rose in the underlying action based upon the lease agreement between Joselyn and Rose (UTC's tender letter is the last document in plaintiff's exhibit 3). Plaintiff responded by letter dated May 31, 2005 rejecting UTC's tender of coverage on the ground that Rose was not named as an insured or additional insured under the policy on the date of the accident (see plaintiff's exhibit 6). By letter to Joselyn dated May 31, 2005 plaintiff disclaimed coverage on the ground of late notice (see plaintiff's exhibit 5). "Despite being properly served with process on August 18, 2005, Jocelyn [sic] Grocery has failed to timely appear in this action" (see Kotlyarsky Supp. Aff. at ¶ 30).

In support of its motion for summary judgment plaintiff contends that it is not obligated to defend or indemnify Joselyn because Joselyn breached the policy's notice-of-occurrence requirement by waiting more than nine months before notifying plaintiff of Zuniga's accident. Plaintiff then argues that it is entitled to summary judgment against Rose and LLC because Rose was never named as an additional insured under the policy and LLC was not named as an additional insured until April 24, 2005, which was nine months after the accident.

LLC and Rose oppose plaintiff's motion. Their attorney argues that "[LLC] and [Rose] are entitled to a defense and indemnification as well as related costs not on the basis of its [sic] additional insured status endorsed on the policy, but based on the terms of its [sic] Lease Agreement as defined by the Tower policy as an 'insurance contract' with Tower's insured, [Joselyn]" under which Joselyn agreed to hold harmless and indemnify LLC and Rose for Joselyn's negligence (see Henderson Aff. in Opp. at ¶ 11).

Summary judgment is a drastic remedy which should be denied if there is any doubt as to the existence of a triable issue (see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231). Notwithstanding the strict standard applicable to plaintiff's motion, the undisputed facts warrant summary relief. The policy provides that notice of an occurrence shall be given "as soon as practicable." The notice received by plaintiff on May 2, 2005, nine months after Zuniga's July 26, 2004 accident, was fatally late (see, e.g., Deso v. London Lancashire Indem. Co. of America, 3 NY2d 127, 129-130 [unexcused delay of 51 days before notice of occurrence given to insurance company vitiates policy]). Rose was never named as an additional insured under the policy and LLC was not named as an additional insured until April 24, 2005. Clearly, Rose and LLC were not covered on the date of the accident. Defendants' contention that insurance coverage for LLC and Rose can be imputed because Joselyn's lease contains an indemnification provision in favor of the landlord is misplaced for two reasons. First, the obligation to procure insurance is separate and distinct from the obligation to indemnify (see Cavanaugh v. 4518 Assoc., 9 AD3d 14, 20 [1^st Dept 2004]; Wilson v. Haagen Dazs Co., Inc., 201 AD2d 361, 362 [1^st Dept 1994]; DiPerna v. American Broadcasting Cos., Inc., 200 AD2d 267, 271 [1^st Dept 1994]). Second, Rose and LLC are not parties to the lease which is between Joselyn, as tenant, and 1700 Development Co., Inc., as landlord (see defendants' exhibit C).

Finally, the fact that plaintiff's notice of motion seeks relief against Joselyn only does not bar relief against LLC and Rose. LLC and Rose have appeared herein by service of an answer and counterclaim. Plaintiff's supporting papers request summary relief against LLC and Rose and they have fully responded to plaintiff's arguments. Thus, there can be no claim of prejudice. Furthermore, plaintiff's notice of motion requests "such other and further relief as the Court deems just, equitable and proper." Under the circumstances, the court will exercise its discretion and grant plaintiff summary judgment against LLC and Rose (cf. Kellogg v. Commodore Hotel, Inc., 187 Misc 319, 322-323, 64 NYS2d 131 [Sup Ct, Otsego Co, 1946]). The court will not, however, grant plaintiff summary judgment with respect to Joselyn because Joselyn has not appeared in this action (see CPLR 3212[a] and [b]).

Accordingly, plaintiff's motion is granted to the extent that it is hereby

ORDERED, ADJUDGED and DECLARED that plaintiff has no duty to defend or indemnify LLC or Rose in the underlying action brought by Olga Zuniga. In all other respects plaintiff's motion is denied.

This constitutes the decision, order and judgment of the court. A copy of this decision, order and judgment has been sent to counsel for plaintiff and defendants LLC and Rose.