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June 4, 2003


The opinion of the court was delivered by: William Conner, Senior District Judge


Plaintiff Bronx Entertainment LLC d/b/a Bronx Entertainment Golf Center ("Bronx Entertainment") brings the instant action against defendant St. Paul Mercury Insurance Co. ("St. Paul") seeking recovery under the terms of an insurance policy (the "Policy") issued by defendant. Defendant now moves for partial summary judgment pursuant to FED. R. Civ. P. 56 on the grounds that plaintiff's second cause of action fails to state a valid claim for relief. For the reasons that follow, defendant's motion is granted.


The following facts are gleaned from the Court's prior Opinion and Order dated February 6, 2002.*fn1 On May 4, 2000, Bronx Family Golf Centers, Inc. (hereinafter "Family Golf") filed a voluntary Chapter 11 bankruptcy petition. Plaintiff, through its principal Louis R. Cappelli, purchased the assets of Family Golf located at 18-05 East Gun Hill Road, Bronx, New York (the "Golf Center") pursuant to an agreement entered into on or around March 21, 2001 (the "Contract") for the stated purchase price of $520,000. Family Golf sold its rights to the Golf Center as a debtor in bankruptcy pursuant to an order approving the sale issued by the Bankruptcy Court on February 22, 2001.

The Golf Center consists of a golf driving range, a miniature golf course and batting cages. Prior to the transfer, on March 4, 2001, the netting surrounding the driving range was torn from the supporting poles by severe weather. The former manager of Family Golf timely notified Family Golfs insurance agent and a claim notice was sent to St. Paul. Family Golf sought recovery under the Contract for: (1) property damage for the cost of repairing or replacing the netting and (2) the anticipated damages resulting from the inability to operate the driving range.

Family Golf owned an insurance policy issued by defendant covering property damage and loss of business. The policy covered the approximately one hundred properties owned by Family Golf, including the Golf Center. In preparation for the sale of the Golf Center to plaintiff, Family Golf executed an Assignment of Insurance Claim (the "Assignment") on March 19, 2001. The Assignment provides, in relevant part, as follows:

Bronx Family Golf Centers, Inc. ("Assignor"), for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, paid to Assignor by Louis Cappelli ("Assignee"), does hereby transfer, assign, set over and quitclaim, without recourse and without representation or warranty of any kind or nature whatsoever, express or implied, all right, title and interest of Assignor in and to that certain claim for insurance proceeds on account of wind damage at premises being sold this date by Assignor to Assignee and located at Gun Hill Road, Bronx, New York, which claim is evidenced by the attached Property Loss Notice, dated March 13, 2001 issued by Mang Craine & Mirabito on behalf of St. Paul Insurance Company.

On April 20, 2001, defendant notified plaintiff that they were denying the insurance claim. Defendant contends that the netting was damaged due to faulty design of the netting suspension system coupled with normal wear and tear. Plaintiff commenced the instant action on July 2, 2001 seeking recovery for the replacement cost of the netting, business disruption losses and fines issued by the City of New York.


I. Summary Judgment Standard

Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 254 (E.D.N.Y. 1999). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Ticali, 41 F. Supp.2d at 254. In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See Ticali, 41 F. Supp.2d at 255. To defeat summary judgment, the nonmovant must go beyond the pleadings and "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court's role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994).

II. Assignee/Assignor Rights

Defendant argues that as a "stranger" to the St. Paul Policy, plaintiff has no enforceable rights, except as assignee, and only to the extent that it is able to show that Assignor Family Golf had a loss covered by the Policy. (Def. Reply Mem. Supp. Summ. J. at 8.) We agree. It is clear law that an assignee steps into the shoes of the assignor and gains only that to which the assignor is entitled. See Septembertide Publ'g, B.V. v. Stein & Day, Inc., 884 F.2d 675, 681-82 (2d Cir. 1989), citing Int'l Ribbon Mills, Ltd. v. Arjan Ribbons, Inc., 365 N.Y.S.2d 808 (1975) ("It is elementary ancient law that an assignee never stands in any better position than his assignor. He is subject to all equities and burdens which attach to the property assigned because he receives no more . . . than his assignor."). An assignee is in no better or worse position than ...

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