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CALVERT INS. CO. v. S&L REALTY CORP.

May 15, 1996

CALVERT INSURANCE COMPANY, Plaintiff, against S&l REALTY CORP., S&l MANAGEMENT CORP., & KITTORIA WASHINGTON, Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Plaintiff Calvert Insurance Co. ("Calvert") has moved for summary judgment pursuant to Rule 56(b), to declare that it is not obligated to defend or indemnify Defendants S&L Realty and S&L Management Corp. (collectively, "S&L") in an underlying personal injury action brought by Defendant Kittoria Washington ("Washington") against S&L based on Washington's alleged exposure to chemical fumes or vapors.

 For the reasons discussed below, Plaintiff's motion for summary judgment will be denied.

 Prior Proceedings

 Calvert brought this action on August 2, 1995, seeking a judgment declaring that it is not obligated to defend or indemnify S&L in Washington's underlying personal injury action. The instant motion was heard and considered finally submitted on March 27, 1996.

 The Facts, the Parties and the Underlying Action

 S&L Realty owns, and S&L Management Corp. manages, a complex of buildings at 76 Clay Street in Brooklyn, New York ("the Clay Street property"). S&L Realty leases the ground floor to Professional Service Centers for the Handicapped ("PSCH"), which operates a mental health facility on the premises. In August 1994, Washington was employed as a counselor by the tenant, PSCH. In August 1994, PSCH hired a floor contractor to install a new floor in the Clay Street property. The contractor laid a plywood base and cemented or glued tiles to it. The work area was not ventilated during the installation of the new floor -- the windows were closed and the air conditioning on. While work was ongoing on August 21, 1994, the cement fumes caused several PSCH employees to become ill. The New York City Fire Department evacuated the Building, and later, after ventilation had dissipated the fumes, allowed reentry.

 On August 30, 1994, Washington brought suit against S&L in the Supreme Court of the State of New York, County of New York, for bodily injuries allegedly sustained on August 21, 1994 as a result of S&L's negligence. Washington alleged in her Complaint that she had been injured as a result of exposure to the fumes from the cement used to install a plywood floor in the Clay Street property owned by S&L and leased by Washington's employer.

 Calvert had issued a commercial general liability policy to S&L covering the Clay Street property. The policy provided that Calvert would defend and indemnify S&L for "'bodily injury' and 'property damage' to which this insurance applies caused by an 'occurrence.'" The policy at issue contains a "total pollution exclusion" clause applying to injury or damage caused by "pollutants." *fn1"

 Legal Standard for Summary Judgment

 A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991).

 In the Second Circuit, "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party. Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S. Ct. 2548, 2556 n. 2, 91 L. Ed. 2d 265 (Brennan, J., dissenting)). The Second Circuit has stated that, when "viewing the evidence produced in the light most favorable to the nonmovant . . . a rational trier could not find for the nonmovant, ...


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