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Chapel Park Villa, Ltd. v. Travelers Insurance Co.

September 29, 2006

CHAPEL PARK VILLA, LTD., PLAINTIFF,
v.
THE TRAVELERS INSURANCE COMPANY, INC. DEFENDANT.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER

(consent)

JURISDICTION

The parties to this action consented to proceed before the undersigned on October 27, 2003. (Docket Item No. 8). The matter is presently before the court on Defendant's motion for partial summary judgment, filed January 18, 2005 (Docket Item No. 14) ("Defendant's Motion").

BACKGROUND

Plaintiff, Chapel Park Villa, Ltd. ("Plaintiff"), commenced this action in New York Supreme Court, Erie County, seeking a declaratory judgment requiring Defendant Travelers Insurance Company ("Defendant") to defend and indemnify Plaintiff with regard to a personal injury claim asserted against it. On June 3, 2002, Defendant removed the action to this court based on diversity jurisdiction.

On January 18, 2005, Defendant filed the instant motion seeking summary judgment on Plaintiff's declaratory judgment action, along with Defendant's Memorandum of Law in Support of Travelers Indemnity Company's Motion for Partial Summary Judgment (Docket Item No. 14") ("Defendant's Memorandum"), the Affidavit of Judith Treger Shelton, Esq. in Support of Traveler's Motion for Partial Summary Judgment ("Shelton Affidavit"), Defendant's Statement of Undisputed Material Facts ("Defendant's Undisputed Facts Statement") and attached exhibits ("Defendant's Exh(s) ___"). In opposition, Plaintiff on February 25, 2005, filed the Affidavit of Joseph A. Matteliano, Esq. (Docket Item No. 19) ("Matteliano Affidavit") together with a Memorandum of Law in opposition to Defendant's motion ("Plaintiff's Memorandum"). Defendant filed, on March 11, 2005, a Reply Memorandum of Law in Support of Defendant's Motion (Docket Item No. 20) ("Defendant's Reply Memorandum"), and the Affidavit of Timothy E. Delahunt, Esq. (Docket Item No. 21) ("Delahunt Affidavit"). Oral argument was deemed unnecessary. Based on the following, Defendant's motion is GRANTED.

FACTS*fn1

On June 26, 1997, Plaintiff leased property known as Chapel Wood Hall at 7008 Erie Road in Derby, New York, to Mark S. Lukich ("Lukich"), pursuant to a written lease agreement, for the purpose of operating a restaurant and banquet facility for a five year term, beginning August 1, 1997. Defendant's Exh. 22 at 3; Defendant's Memorandum at 4. On August 1, 1998, Lukich allegedly sustained personal injuries from an accident involving a fall that occurred on Plaintiff's property, the leased premises. Defendant's Exh. 22 at 2; Defendant's Memorandum at 3. Specifically, Lukich contends that, as a result of Plaintiff's failure to maintain a safe workplace and provide him with proper "tools and instrumentalities," Lukich fell from a ladder, sustaining personal injuries Defendant's Exh. A at 2. Lukich commenced this action on June 29, 2001 against Plaintiff in New York Supreme Court Defendant's Exh. N. It is undisputed that Defendant issued two insurance policies which are the subject of this action, a general liability policy ("the liability policy"), Defendant's Exh. 22 at 2-3; Defendant's Exh. Z (Doc. No. 17), and a "Commercial Excess Liability" policy ("the umbrella policy"), Defendant's Exh. 22 at 2-3; Defendant's Exh. AA (Doc. No. 16). Both policies were effective for a one-year period, from August 1, 1998 through August 1, 1999. Defendant's Exh. 22 at 2-3; Defendant's Memorandum at 16-18.

As relevant, Section IV of the liability policy states

2. Duties In The Event of Occurrence, Claim or Suit

a. You [Plaintiff] must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include:

(1) How, when and where the "occurrence or offense took place;

(2) The names and addresses of any injured persons and witnesses; and

(3) The nature and location of any injury or damage arising out of the "occurrence" or offense.

e. Notice given by or on behalf of the insured, or written notice by or on behalf of the injured person or any other claimant, to any agent of ours in New York State, with particulars sufficient to identify the insured, shall be considered notice to us.

Defendant's Exh. 22 at 2.

Section IV(5) of the umbrella policy similarly requires:

a. You [Plaintiff] must see to it that we are given prompt written notice of any "occurrence" or "offense" which may result in damages payable by this policy. Notice should include:

(1) How, when and where the "occurrence" or "offense" took place;

(2) The names and addresses of any injured persons and witnesses; and

e. Notice given by or for an insured, or written notice by or for the injured person or any other claimant, to any of our licensed agents, with particulars sufficient to ...


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