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FC Bruckner Associates, L.P. v. Fireman's Fund Insurance Co.

Supreme Court, New York County

April 18, 2013

FC BRUCKNER ASSOCIATES, L.P. and FIRST NEW YORK MANAGEMENT, INC., Plaintiffs,
v.
FIREMAN'S FUND INSURANCE CO. and GAB ROBIN'S NORTH AMERICA, INC. Defendants. Index No. 600341/10

Unpublished Opinion

Submission Date: 12/12/2012

For Plaintiffs: Herzfeld & Rubin, P.C

For Defendant GAB Robbins North America Ropers Majeski Kohn Bentley

For Defendant Fireman’s Fund Insurance: Rivkin Radler LLP

DECISION & ORDER

SALIANN SCARPULLA, J.

Papers considered in review of GAB Robbins North America’s motion for summary judgment:

Notice of Motion/Affirm. of Counsel/Memo of Law ................................ 1
Affirm. in Opp. to Motion .........................................................................2
Affirm. in Partial Opp. to Motion ............................................................. 3
Reply Memo of Law/\Affirm. Of counsel ................................................. 4

In this action, defendant GAB Robins North America, Inc. (“GAB”) moves for summary judgment dismissing plaintiffs FC Bruckner Associates, L.P. (“FC Bruckner”) and First New York Management, Inc.’s (“FNY”) complaint pursuant to CPLR 8 3212. On February 9, 20 10, FC Bruckner and FNY (collectively, “Plaintiffs”) commenced this action against defendants Fireman’s Fund Insurance Co. (“FFIC”) and GAB. Plaintiffs assert four causes of action: a declaratory judgment claim and a breach of contract claim against their excess insurer, FFIC, and a negligence and a breach of contract claim against their third-party insurance administrator, GAB.

In their complaint, Plaintiffs allege that they are entitled to defense and indemnification from FFIC, and that FFIC is liable for breach of contract because of its failure to provide insurance coverage to Plaintiffs in an underlying tort action, Sullivan v. FC Bruckner Plaza Associates, et al., New York Supreme Court, Bronx County, Index No. 14817/1997) ("the Sullivan action").

Plaintiffs also allege that GAB acted negligently and in breach of contract because it failed to provide timely notice of the Sullivan action to FFIC. Plaintiffs' breach of contract claim is based on a contract between GAB and Forest City Enterprises, Plaintiffs' parent corporation, in which GAB agreed to provide ...


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