Motion Date: 12/23/11
PRESENT: DEBRAA. JAMES Justice
Upon the foregoing papers,
Defendant moves to dismiss this action, pursuant to CPLR 3211 (a) (7) or, alternatively, to extend its time to move for summary judgment pursuant to CPLR 3212 (a) until 60 days after disposition of a related criminal action (the Criminal Action) entitled People of the State of New York v. Daniel Ignacio (Ignacio), Supreme Court, Kings County, indictment number 1084/2010. Plaintiff cross-moves to dismiss the second through sixth affirmative defenses.
This declaratory judgment action involves an insurance policy, number CPP24133 80 (the Policy) issued by defendant to plaintiff, initially for the period from May 12, 2 004 through May 12, 2005 and continuously renewed on the same terms. Plaintiff owned the building (the Building) located at 20-3 5 86th Street, Brooklyn, New York and, on January 30, 2 010, a fire was intentionally set at the Building, leading to death, personal injury and property damage. After being notified of this occurrence by plaintiff's insurance broker, defendant commenced an investigation, including inquiries of the New York City Police Department (NYPD) and the Fire Department of the City of New York (FDNY). The investigation revealed that the NYPD and FDNY would not release records pending prosecution of the Criminal Action. It also revealed that a suspect, Ignacio, had admitted committing the crime and that Ignacio had been indicated the criminal Action as a result of the fire .The Criminal Action is still pending.
Tower's investigator issued a report on February 11, 2010, and on February 25, 2 010, defendant sent a letter (the Disclaimer Letter) to plaintiff, disclaiming coverage based upon policy provisions excluding coverage for bodily injury and property damage arising from an assault or battery.
On March 10, 2010, an indictment was returned against Ignacio in the Criminal Action, charging him with 5 counts of murder in the second degree, assault in the first degree, arson in the fourth degree and 12 counts of assault in second degree for his actions in allegedly causing the fire at the Building on January 30, 2010. On March 30, 2010, plaintiff commenced this declaratory judgment action seeking a determination that defendant was obligated to defend and indemnify it in any personal injury, wrongful death or property damage action brought against it as a result of the fire. On April 30, 2010, defendant interposed an answer with affirmative defenses that assert that there is no coverage based upon exclusion provisions of the Policy.
On October 13, 2 010, an action was commenced entitled Massa v Gerazounis, Civil Court, Kings County, index number 93869/2010 (the Underlying Property Damage Action) seeking $18, 000 for alleged property damage. On August 16, 2 011, an action was commenced entitled Perez et al. v 88 on 86th St. LLC et al.. Supreme Court, Kings County, index number 18691/2011 (the Underlying Personal Injury Action). The Underlying Personal Injury Action alleges that Gerazounis and/or affiliated limited liability companies owned, managed and maintained the Building, that they were negligent in their control of the premises and that, due to this purported negligence, plaintiffs suffered physical injury, property damage and certain plaintiffs suffered as a result of the wrongful deaths of their decedents, due to the fire at the Building on January 30, 2010.
The complaint in this declaratory judgment action seeks a declaration that defendant is obligated to defend and indemnify plaintiff in any and all personal injury, wrongful death and property damage actions arising out of the fire at the Building, up to the Policy's limits. This would encompass the Underlying Personal Injury Action and the Underlying Property Damage Action. Defendant is providing coverage under a reservation of rights.
Plaintiff has stated that it accepts defendant's factual assertions and the authenticity of defendant's exhibits and it does not dispute defendant's investigation as to the fire and the Criminal Action. it contends that the Policy's Assault and Battery exclusion is not applicable and that, ' therefore, defendant is obligated to provide it coverage under the Policy.
The Policy states (Section I, Clause 1 [a]) that:
"[Defendant] will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' ...