White v. Aron Kaufman & Co.

Appellate Division of the Supreme Court of New York

White v. Aron Kaufman & Co.

243 A.D.2d 255, 663 N.Y.S.2d 143, 1997 N.Y. App. Div. LEXIS 9288

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 2, 1997

StatusPublished

Cited by1 cases

This text of 243 A.D.2d 255 (White v. Aron Kaufman & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

White v. Aron Kaufman & Co., 243 A.D.2d 255, 663 N.Y.S.2d 143, 1997 N.Y. App. Div. LEXIS 9288 (N.Y. Ct. App. 1997).

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Opinion

Order, Supreme Court, New York County (Ira Gammerman, J.), entered November 26, 1996, which granted defendants-respondents’ motion for summary judgment dismissing the complaint as against them, and denied plaintiff insurer’s cross motion for partial summary judgment as to liability, unanimously modified, on the law, to reinstate the complaint as against the corporate defendant Aron Kaufman & Company, and otherwise affirmed, without costs.

There was no ambiguity in the actual policy with respect to the named insureds. Kaufman & Company was not an additional insured under the policy, and the IAS Court’s reliance on the “cover note” from the broker as the basis for that conclusion was misplaced. The court cannot create coverage where none exists by virtue of the fact that Kaufman & Company had an insurable interest in the stone and/or the anticipated finished products (see, Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, affd 49 NY2d 924). Accordingly, the antisubrogation rule does not avail Kaufman & Company. On the merits, an issue of fact exists as to whether the damage to the stone was caused by Kaufman & Company’s negligent performance of its alleged contract to process the stone, precluding summary judgment in favor of or against that insured (see, Rosenbaum v Branster Realty Corp., 276 App Div 167, 168). However, the complaint was properly dismissed as against the individual Kaufman defendants, there being nothing in the record to support an inference that they agreed to manufacture, process or accept delivery of the stone in their individual capacities.

Motion for reargument granted to the extent of recalling and vacating this Court’s unpublished decision and order (Appeal No. 61189) entered on June 24, 1997, and substituting therefor a new decision and order, decided simultaneously herewith. Concur—Sullivan, J. P., Milonas, Williams and Tom, JJ.

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Order, Supreme Court, New York County (Ira Gammerman, J.), entered November 26, 1996, which granted defendants-respondents’ motion for summary judgment dismissing the complaint as against them, and denied plaintiff insurer’s cross motion for partial summary judgment as to liability, unanimously modified, on the law, to reinstate the complaint as against the corporate defendant Aron Kaufman & Company, and otherwise affirmed, without costs.

There was no ambiguity in the actual policy with respect to the named insureds. Kaufman & Company was not an additional insured under the policy, and the IAS Court’s reliance on the “cover note” from the broker as the basis for that conclusion was misplaced. The court cannot create coverage where none exists by virtue of the fact that Kaufman & Company had an insurable interest in the stone and/or the anticipated finished products (see, Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, affd 49 NY2d 924). Accordingly, the antisubrogation rule does not avail Kaufman & Company. On the merits, an issue of fact exists as to whether the damage to the stone was caused by Kaufman & Company’s negligent performance of its alleged contract to process the stone, precluding summary judgment in favor of or against that insured (see, Rosenbaum v Branster Realty Corp., 276 App Div 167, 168). However, the complaint was properly dismissed as against the individual Kaufman defendants, there being nothing in the record to support an inference that they agreed to manufacture, process or accept delivery of the stone in their individual capacities.

Motion for reargument granted to the extent of recalling and vacating this Court’s unpublished decision and order (Appeal No. 61189) entered on June 24, 1997, and substituting therefor a new decision and order, decided simultaneously herewith. Concur—Sullivan, J. P., Milonas, Williams and Tom, JJ.

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Bluebook (online)

243 A.D.2d 255, 663 N.Y.S.2d 143, 1997 N.Y. App. Div. LEXIS 9288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-aron-kaufman-co-nyappdiv-1997.

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