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Tower Ins. Co. of New York v. Saleh

Other Lower Courts

January 15, 2008

Tower Insurance Company of New York, Plaintiff,
v.
Mohamed Abdo Nagi Saleh d/b/a Court Discount Stationary Corp. and Thomas C. Spasiano, Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Carol R. Edmead, J.

MEMORANDUM DECISION

In this declaratory judgment action, defendant Thomas C. Spasiano ("Spasiano") moves pursuant to CPLR 3212 for summary judgment dismissing the complaint of the plaintiff Tower Insurance Company of New York ("Tower Insurance"). Tower Insurance cross moves for summary judgment declaring that it has no duty to defend or indemnify defendant Mohamed Abdo Nagi Saleh ("Mohamed") d/b/a Court Discount Stationary Corp. ("Discount Stationary") in a pending action by Spasiano against Discount Stationary (the "underlying action"). [1]

Factual Background

Mohamed owns Discount Stationary. Tower Insurance issued an insurance policy (the "Policy") to Discount Stationary, effective August 11, 2003 through August 11, 2004, covering Discount Stationary's store at 92 East 161st Street, Bronx, New York (the "store"). The Policy provides liability coverage for "sums the insured becomes legally obligated to pay as damages because of bodily injury' . . . caused by an occurrence."' However, coverage is conditioned upon Discount Stationary notifying Tower Insurance "as soon as practicable" of an "occurrence . . . which may result in a claim." Under the Policy, "occurrence" is defined in part as "accident."

On October 19, 2003, Spasiano, a police officer, entered into the store with several other officers. Spasiano alleges that he was injured when he fell through an open cellar door leading to the basement in the rear of the store. At the time of Spasiano's accident, Ahmed Nageh Awad ("Ahmed") and Mohamed's brother, Hisham Saleh ("Hisham"), who was also Ahmed's supervisor, were working at the store; Ahmed was outside emptying trash and Hisham was handling purchases at the front of the store. Hisham heard Spasiano scream, ran to the back, and observed Spasiano "coming up from the basement" through the cellar door. Ahmed entered the store and observed Spasiano seated in the front of the store. Hisham told Ahmed that Spasiano "got hurt. Something like that." According to Ahmed, he offered Spasiano water, but Spasiano refused. Spasiano stated "Nothing happened. I am fine." "I have nothing wrong." Spasiano stood up and talked to Ahmed, and then walked out of the store.

About five minutes after the accident, Hisham saw other officers taking pictures of the store. The officers requested that Hisham and Ahmed provide a copy of the store's business certificate.

Three days later, Ahmed saw Spasiano buying coffee at a restaurant next door.

On a subsequent occasion, Hisham asked the other officers about Spasiano, and learned that Spasiano had been hospitalized.

As Mohamed's only employees, Hisham and Ahmed were responsible for notifying Mohamed when there were incidents such as "slipping," when someone was injured, or when an ambulance or police were called to the premises. If an incident was "slight," Misham and Ahmed were not required to notify Mohamed. However, neither Misham nor Ahmed, reported the incident to Mohamed. Mohamed did not know about Spasiano's incident until he received "mail" long after the incident occurred. When Mohamed received such "mail," he went to his attorney and then confronted Misham and Ahmed about the incident. Misham and Ahmed then told Mohamed that one of the customers came into the store and fell down, stood up, and left the store. Hisham told Mohamed that he did not think it was that "serious."

According to Spasiano, Mohamed admits that he knew a police officer had requested a copy of the store's business certificate. Mohamed reported the incident to his insurance broker, apparently after receiving a letter of representation from Spasiano's attorney dated April 21, 2005, 18 months after the accident.

Tower Insurance was first notified of the accident on April 25, 2005, 18 months after the occurrence, when it received a ...


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