E.E. Cruz & Co., Inc. v. Starr Surplus Lines Ins. Co.
Opinion
E.E. Cruz & Co., Inc. v Starr Surplus Lines Ins. Co.
2024 NY Slip Op 32956(U)
August 20, 2024
Supreme Court, New York County Docket Number: Index No. 652321/2020 Judge: Emily Morales-Minerva 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.
FILED: NEW YORK COUNTY CLERK 08/21/2024 12:59 PM INDEX NO. 652321/2020 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 08/21/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. EMILY MORALES-MINERVA · PART 42M Justice
----,------------------.x INDEX NO. 652321/2020 E.E. CRUZ & COMPANY, INC., MOTION DATE 05/07/2024 Plaintiff,
MOTION SEQ. NO. · 008 -v-
STARR SURPLUS LINES INSURANCE COMPANY, DECISION + ORDER ON MOTION
Defendant.
-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 008) 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215,216,217,218,219,220,221,222,223,224 were read on this motion to/for DISMISS DEFENSE
. APPEARANCES:
Saxe, Doernberger & Vita P.C., Trumbull, Connecticut (Stacy M. Manobianca, Esq., of counsel) for plaintiff.
Foran Glennon Palandech Ponzi & Rudloff P.C., New York, New York (Charles J. Rocco, of counsel) for defendant.
HON. EMILY MORALES-MINERVA:
In this action for, among other things, breach of contract, plaintiff E.E. CRUZ & COMPANY, INC., moves, pursuant to CPLR § 3211(b), to dismiss defendant STARR SURPLUS LINES INSURANCE COMPANY's fifth affirmative defense on the ground that a defense is not stated or has no merit. Defendant opposes the motion, and cross-moves, pursuant to CPLR § 2215, 1 for an order of sanctions against plaintiff (see Rules of the Chief
1 CPLR § 2215 provides for relief demanded by other than moving party. 65232112020 E.E. CRUZ & COMPANY, INC. vs. STARR SURPLUS LINES Page 1 of7 Motion No. 008
1 of 7
[* 1]
FILED: NEW YORK COUNTY CLERK 08/21/2024 12:59 PM INDEX NO. 652321/2020 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 08/21/2024
Administrator of the Courts [22 .NYCRR] § 130-1.1 [governing costs and sanction for frivolous conduct]).
For the reasons set forth below, the court denies both plaintiff's motion and defendant's cross-motion~
BACKGROUND
Plaintiff E.E. CRUZ & COMPANY, INC. (Insured) filed a complaint, dated September 04, 2020, against defendant STARR SURPLUS LINES INSURANCE COMPANY (Insurance Company), setting forth five causes of action. The first cause of action is for a declaration that Insurance Company is required to provide insurance coverage to Insured for losses suffered in connection with the subject const~uction project; the second and third causes of action are for breach of contract and breach of the implied covenant of good faith and fair dealing; the fourth cause of action is for negligent misrepresentation; and the fifth cause of action is for deceptive business practices in violation of General Business Law§ 349 (NYSCEF Doc. No. 04, Complaint). Insurance Company timely submitted its answer with affirmative defenses (NYSCEF Doc. No. 10, Answer).
Thereafter, on January 12, 2021, Insurance Company moved, pursuant to CPLR § 321l(a) (7), for an ordering dismissing the first, fourth, and fifth causes of action, and dismissing
652321/2020 E.E. CRUZ & COMPANY, INC. vs. STARR SURPLUS LINES Page2of7 Motion No. 008
2 of 7
[* 2]
FILED: NEW YORK COUNTY CLERK 08/21/2024 12:59 PM INDEX NO. 652321/2020 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 08/21/2024
portions of the second and third causes of action, 2 alleging the pleading failed to state a claim (NYSCEF Doc. No. 13, notice of motion).
The court (N. Bannon; J.S.C.) denied Insurance Company's motion (seq. no. 001) in its entirety (NYSCEF Doc. No. 34, Decision and Order, dated October 12, 2021) . 3 Later, Insurance Company filed motion (seq. no. 004), pursuant to CPLR § 3212, for an order, granting it summary judgment.
On February 7, 2024, the court (N. Bannon, J.S.C.) denied Insurance Company's motion for summary judgment in its entirety. Addressing each of the five causes of action, Judge N. Bannon concluded that Insurance Company failed to establish its prima facie entitlement to judgment as a matter of law on any of them ( ~ NYSCEF Doc. No. 140, Decision and Order) . 4 Now, in the subject motion (seq. no. 008), Insured moves, pursuant to CPLR § 3211 (b), to dismiss Insurance Company's fifth affirmative defense -- that the subject insurance policy precludes Insured from receiving coverage for "loss, damage or expense caused by, resulting from or made worse by . . . fault,
2 Insurance Company did not seek t;o dismiss the breach of contract portions of the second and third causes of action. 3 Motion sequences 002 and 003 for admission of counsel pro hac vice were
unopposed and granted on December 15, 2021, and April 26, 2022 (NYSCEF Doc. Nos. 41, 53). 4 On March 8, 2024, Insurance Company moved, pursuant to CPLR § 2221, to reargue (seq. no. 005), which was summarily denied by the court (NYSCEF Doc. No. 161, Decision and Order, N. Bannon, J.S.C., April 8, 2024). On April 1, 2024, Insured moved for sanctions (seq. no. 006), which this Court denied in its entirety (NYSCEF Doc. No. 187, Decision and Order, April 29, 2024). 652321/2020 E.E. CRUZ & COMPANY, INC. vs. STARR SURPLUS LINES Page 3 of7 Motion No. 008
3 of 7
[* 3]
FILED: NEW YORK COUNTY CLERK 08/21/2024 12:59 PM INDEX NO. 652321/2020 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 08/21/2024
defect, error, deficiency or omission in design, plan or specification" (see NYSCEF Doc. No. 194, Policy, p 15). Insured contends that this defense is not stated or has no merit because Insurance Company "does not have any evidence that [insured] did anything wrong" and Insurance Company cannot prove "the fundamental element of 'fault'" under the.Policy (see NYSCEF Doc. No. 224, Memorandum of Law, p 5).
Insurance Company counters that Insured's argument is misplaced; as the provision does not require "fault" on Insured's part. Further, Insurance Company argues that the applicability of the policy exclusion is a question of fact. Finally, Insurance Company cross-moves for sanctions against Insurer alleging its filing of the subject motion amounts to frivolous conduct (see Rules of the Chief Administrator of the Courts [22 NYCRR] § 130-1.1).
ANALYSIS
Motion to Dismiss
"A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR § 3211 [b]). In making such a motion, "the plaintiff bears the heavy burden of showing that the defense is without merit as a matter of law" (Granite State Ins. Co. v
6!$2321/2020 E.E. CRUZ & COMPANY, INC. vs. STARR SURPLUS LINES Page4of7 Motion No; 008
4 of 7
[* 4]
FILED: NEW YORK COUNTY CLERK 08/21/2024 12:59 PM INDEX NO. 652321/2020 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 08/21/2024
Transatlantic Reins. Co., 132 AD3d 479, 481 [1st Dept 2015], citing 534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick, 90 AD3d 541, 541 [1st Dept 2011]; see also Alpha Capital Anstalt v Gener•l Biotechnology Corp., 191 AD3d 515, 516 [1st Dept 2021]).
Further, courts must view the answer's allegations "in the light most favorable to the defendant" and must provide the defendant "the bene'fi t of every reasonable intendment of the pleading, which is to be liberally construed (Alpha Capital Anstalt, 191 AD3d at 516 [citations omitted]; see also Granite State Ins. Co., 132 AD3d at 481; 182 Fifth Ave. v Design Dev. Concepts, 300 AD2d 198, 199 [1st Dept 2002]). In addition, "the court should not dismiss a defense where there remain questions of fact requiring a trial" (Granite State Ins. Co., 132 AD3d at 4 81) .
Free access — add to your briefcase to read the full text and ask questions with AI
2024 NY Slip Op 32956(U) (E.E. Cruz & Co., Inc. v. Starr Surplus Lines Ins. Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.