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Insurance Corporation of New York v. Kenning Management of Connecticut

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 3, 2009

THE INSURANCE CORPORATION OF NEW YORK, PLAINTIFF-RESPONDENT,
v.
KENNING MANAGEMENT OF CONNECTICUT, LLC, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered June 10, 2008, which, in an action alleging breach of fiduciary duty and unjust enrichment, denied defendants' motion pursuant to CPLR 7503 to compel arbitration and stay further proceedings in this action, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Friedman, Buckley, Catterson, Acosta, JJ.

600925/08

The court properly denied the motion to compel arbitration, since plaintiff did not agree to arbitrate, and the management agreement between its parent Trenwick America Reinsurance Corporation (TARCO) and defendant Kenning, to develop and manage a Run-Off Plan accepted by the Connecticut Department of Insurance relating to TARCO, did not cover either the corporate or individual parties to this action (see TNS Holdings v MKI Sec. Corp., 92 NY2d 335 [1998]). Nor may the individual defendants compel arbitration as third-party beneficiaries of the TARCO agreement, since none of plaintiff's claims against defendants arise under that agreement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090303

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