AIG Prop. Cas. Co. v Grand Chance Holding Ltd. 2025 NY Slip Op 30530(U) February 14, 2025 Supreme Court, New York County Docket Number: Index No. 60413/2021 Judge: Mary V. Rosado 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. 160413/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/14/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice --------------------X INDEX NO. 160413/2021 AIG PROPERTY CASUAL TY COMPANY a/s/o MOTION DATE 04/17/2024 AMY TANENBAUM
Plaintiff, MOTION SEQ. NO. 001
- V- DECISION + ORDER ON GRAND CHANCE HOLDING LTD., MOTION Defendant. ------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39,40, 41, 42,43,44, 45, 46,47, 48,49, 50, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63 were read on this motion to/for JUDGMENT - SUMMARY
Upon the foregoing documents, and after oral argument dated November 26, 2024, where
Lawrence B. Lambert, Esq. appeared for Plaintiff AIG Property Casualty Company a/s/o Amy
Tanenbaum ("Plaintiff' or "AIG") and Aleksander B. Milch, Esq. appeared for Defendant Grand
Chance Holding Ltd., Plaintiffs motion for summary judgment is granted in part and denied in
part.
L Background
AIG insured a five-story building at 166 East 108th Street (the "Insured Building"), owned
by Amy Tanenbaum. Abutting the Insured Building is a building owned by Grand Chance Holding
Ltd. ("Defendant"). On June 16, 2021, an electrical fire originated in Defendant's building and
caused smoke damage to the Insured Building. AIG seeks to recoup from Defendant $165,119.48
paid to AIG's insured, Ms. Tanenbaum. Plaintiff now moves for summary judgment and seeks
dismissal of Defendant's counterclaim, which alleges this action is frivolous and meant to harass
Defendant.
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II. Discussion
A. Standard
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557,562 [1980]).
B. Liability
Plaintiff is granted summary judgment as to liability. Here, it is undisputed that the Insured
Building suffered fire damage because of construction taking place in Defendant's building in a
negligent manner. When the smoke damage occurred, Defendant's building was undergoing a gut
renovation without a permit, for which Defendant was fined. Moreover, the New York City Fire
Department, after an investigation, concluded that the fire was caused by Defendant jumping a
circuit breaker in Defendant's building (see NYSCEF Docs. 36-37, 43).
Defendant opposes summary judgment mainly on procedural grounds. However,
Defendant's procedural arguments are insufficient to deny summary judgment on liability.
Although Defendant takes issue with the affirmation submitted by Ms. Tanenbaum, Defendant
overlooks the recent 2024 amendment to CPLR 2106, which allows witnesses to submit
affirmations in lieu of affidavits. Here, the Court finds Ms. Tanenbaum's affirmation sufficient.
Further, Defendant's argument that Plaintiff failed to submit an affidavit from an adjuster at AIG
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is misplaced as Plaintiff submitted the affidavit of Pamela Moore on its motion in chief (see
NYSCEF Doc. 29).
Although Defendant is correct that Plaintiff failed to include the insurance policy under
which AIG seeks subrogation on its motion in chief, Plaintiff produced the insurance policy on
reply, and Defendant cannot claim prejudice from this omission as the insurance policy was
provided via a discovery response dated March 8, 2023 (NYSCEF Doc. 62; see also Kennelly v
Mobius Realty Holdings LLC, 33 AD3d 380 [1st Dept 2006]). Moreover, Defendant had an
opportunity at oral argument to address any deficiencies with the insurance policy submitted on
reply (see generally Pizarro v Dennis James Boyle, Inc., 180 AD3d 596 [1st Dept 2020]). Further,
although Defendant takes issue with the form of the deed to the Insured Building annexed to the
motion papers, this does not give rise to a material issue of fact since neither party disputes
ownership of the two buildings at issue, especially given the undisputed deposition testimony.
C. Damages
However, summary judgment on Plaintiffs claims of damages is denied. As a preliminary
matter, Defendant's argument that Plaintiff needs to amend its complaint to obtain summary
judgment is without merit as the Complaint explicitly states that it seeks damages "of at least
$51,088.05 .... plus any additional payments issued by plaintiff for damages and losses sustained
by Tanenbaum as a result of the June 16, 2021 incident." (see NYSCEF Doc. 1 at ,i 8). Moreover,
Defendant was on notice of the additional payments by virtue of Plaintiff's discovery responses
(NYSCEF Doc. 62).
Nonetheless, summary judgment is denied as the Court finds Plaintiff has not demonstrated
the absence of material issues of fact as to the total damages owed. As set forth by Defendant, the
motion papers do not establish that all items for which Plaintiff was reimbursed were smoke
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damaged, and there remains an issue of fact as to whether the insured "capitalized" on the
opportunity to have certain personal items which were not smoke damaged cleaned and restored
(see generally !DX Capital, LLC v Phoenix Partners Group, 83 AD3d 569 [1st Dept 2011] [court's
function on a motion for summary judgment is issue finding and not issue resolution]).
D. Defendant's Counterclaim
The branch of Plaintiffs motion which seeks dismissal of Defendant's counterclaim is
granted. Defendant's counterclaim, which alleges this action is frivolous and intended to harass, is
without merit as Plaintiff has demonstrated entitlement to summary judgment on liability.
Accordingly, it is hereby,
ORDERED that Plaintiffs motion for summary judgment against Defendant is granted in
part and denied in part; and it is further
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AIG Prop. Cas. Co. v Grand Chance Holding Ltd. 2025 NY Slip Op 30530(U) February 14, 2025 Supreme Court, New York County Docket Number: Index No. 60413/2021 Judge: Mary V. Rosado 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. 160413/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/14/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice --------------------X INDEX NO. 160413/2021 AIG PROPERTY CASUAL TY COMPANY a/s/o MOTION DATE 04/17/2024 AMY TANENBAUM
Plaintiff, MOTION SEQ. NO. 001
- V- DECISION + ORDER ON GRAND CHANCE HOLDING LTD., MOTION Defendant. ------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39,40, 41, 42,43,44, 45, 46,47, 48,49, 50, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63 were read on this motion to/for JUDGMENT - SUMMARY
Upon the foregoing documents, and after oral argument dated November 26, 2024, where
Lawrence B. Lambert, Esq. appeared for Plaintiff AIG Property Casualty Company a/s/o Amy
Tanenbaum ("Plaintiff' or "AIG") and Aleksander B. Milch, Esq. appeared for Defendant Grand
Chance Holding Ltd., Plaintiffs motion for summary judgment is granted in part and denied in
part.
L Background
AIG insured a five-story building at 166 East 108th Street (the "Insured Building"), owned
by Amy Tanenbaum. Abutting the Insured Building is a building owned by Grand Chance Holding
Ltd. ("Defendant"). On June 16, 2021, an electrical fire originated in Defendant's building and
caused smoke damage to the Insured Building. AIG seeks to recoup from Defendant $165,119.48
paid to AIG's insured, Ms. Tanenbaum. Plaintiff now moves for summary judgment and seeks
dismissal of Defendant's counterclaim, which alleges this action is frivolous and meant to harass
Defendant.
160413/2021 AIG PROPERTY CASUALTY COMPANY vs. GRAND CHANCE HOLDING LTD. Page 1 of 5 Motion No. 001
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II. Discussion
A. Standard
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557,562 [1980]).
B. Liability
Plaintiff is granted summary judgment as to liability. Here, it is undisputed that the Insured
Building suffered fire damage because of construction taking place in Defendant's building in a
negligent manner. When the smoke damage occurred, Defendant's building was undergoing a gut
renovation without a permit, for which Defendant was fined. Moreover, the New York City Fire
Department, after an investigation, concluded that the fire was caused by Defendant jumping a
circuit breaker in Defendant's building (see NYSCEF Docs. 36-37, 43).
Defendant opposes summary judgment mainly on procedural grounds. However,
Defendant's procedural arguments are insufficient to deny summary judgment on liability.
Although Defendant takes issue with the affirmation submitted by Ms. Tanenbaum, Defendant
overlooks the recent 2024 amendment to CPLR 2106, which allows witnesses to submit
affirmations in lieu of affidavits. Here, the Court finds Ms. Tanenbaum's affirmation sufficient.
Further, Defendant's argument that Plaintiff failed to submit an affidavit from an adjuster at AIG
160413/2021 AIG PROPERTY CASUALTY COMPANY vs. GRAND CHANCE HOLDING LTD. Page 2 of 5 Motion No. 001
2 of 5 [* 2] INDEX NO. 160413/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/14/2025
is misplaced as Plaintiff submitted the affidavit of Pamela Moore on its motion in chief (see
NYSCEF Doc. 29).
Although Defendant is correct that Plaintiff failed to include the insurance policy under
which AIG seeks subrogation on its motion in chief, Plaintiff produced the insurance policy on
reply, and Defendant cannot claim prejudice from this omission as the insurance policy was
provided via a discovery response dated March 8, 2023 (NYSCEF Doc. 62; see also Kennelly v
Mobius Realty Holdings LLC, 33 AD3d 380 [1st Dept 2006]). Moreover, Defendant had an
opportunity at oral argument to address any deficiencies with the insurance policy submitted on
reply (see generally Pizarro v Dennis James Boyle, Inc., 180 AD3d 596 [1st Dept 2020]). Further,
although Defendant takes issue with the form of the deed to the Insured Building annexed to the
motion papers, this does not give rise to a material issue of fact since neither party disputes
ownership of the two buildings at issue, especially given the undisputed deposition testimony.
C. Damages
However, summary judgment on Plaintiffs claims of damages is denied. As a preliminary
matter, Defendant's argument that Plaintiff needs to amend its complaint to obtain summary
judgment is without merit as the Complaint explicitly states that it seeks damages "of at least
$51,088.05 .... plus any additional payments issued by plaintiff for damages and losses sustained
by Tanenbaum as a result of the June 16, 2021 incident." (see NYSCEF Doc. 1 at ,i 8). Moreover,
Defendant was on notice of the additional payments by virtue of Plaintiff's discovery responses
(NYSCEF Doc. 62).
Nonetheless, summary judgment is denied as the Court finds Plaintiff has not demonstrated
the absence of material issues of fact as to the total damages owed. As set forth by Defendant, the
motion papers do not establish that all items for which Plaintiff was reimbursed were smoke
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damaged, and there remains an issue of fact as to whether the insured "capitalized" on the
opportunity to have certain personal items which were not smoke damaged cleaned and restored
(see generally !DX Capital, LLC v Phoenix Partners Group, 83 AD3d 569 [1st Dept 2011] [court's
function on a motion for summary judgment is issue finding and not issue resolution]).
D. Defendant's Counterclaim
The branch of Plaintiffs motion which seeks dismissal of Defendant's counterclaim is
granted. Defendant's counterclaim, which alleges this action is frivolous and intended to harass, is
without merit as Plaintiff has demonstrated entitlement to summary judgment on liability.
Accordingly, it is hereby,
ORDERED that Plaintiffs motion for summary judgment against Defendant is granted in
part and denied in part; and it is further
ORDERED that Plaintiffs motion for summary judgment seeking dismissal of
Defendant's counterclaim is granted, and Defendant's counterclaim is hereby dismissed; and it is
further
ORDERED that Plaintiffs motion for summary judgment on the issue of liability on its
cause of action alleging negligence against Defendant is granted; and it is further
ORDERED that Plaintiffs motion for summary judgment is denied on the issue of
damages on its cause of action alleging negligence against Defendant; and it is further
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ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
2/14/2025 DATE N. MARY V. ROSADO, J.S.C.
CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION
GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANS F ERJREASSI GN FIDUCIARY APPOINTMENT □ REFERENCE
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