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No Hero Enters. B.V. v. Loretta Howard Gallery Inc.

United States District Court, S.D. New York

May 7, 2014

NO HERO ENTERPRISES B.V., Plaintiff,
v.
LORETTA HOWARD GALLERY INC., LORETTA HOWARD HOLDINGS, INC., LORETTA HOWARD, individually, PAUL KASMIN GALLERY, INC., and 513 WEST 26TH REALTY, LLC, Defendants. LORETTA HOWARD GALLERY INC., Third-Party Plaintiff,
v.
AXA ART INSURANCE CORPORATION, Third-Party Defendant

Page 422

For No Hero Enterprises B.V., Plaintiff, Cross Defendant: Dean R. Nicyper, Jennifer Lynn Bloom, Flemming Zulack Williamson Zauderer, LLP, New York, NY.

For Loretta Howard Gallery Inc., Loretta Howard Holdings, Inc., Loretta Howard, individually, Defendants, ThirdParty Plaintiffs, Cross Claimants: Adam Dana Mitzner, Pavia & Harcourt LLP, New York, NY.

For Paul Kasmin Gallery, Inc., Defendant, Cross Claimant, Cross Defendant: George W. Wright, LEAD ATTORNEY, George W. Wright & Associates, LLC, New York, NY.

For 513 West 26th Realty, LLC, Defendant, Cross Defendant, Cross Claimant: Kurt Dominic Robertson, Wilson Elser,Moskowitz Edelman & Dicker LLP(White Plains), White Plains, NY.

For AXA Art Insurance Corporation, Cross Defendant, Cross Defendant, ThirdParty Defendant: John Robert Cahill, Ronald Wolf Adelman, LEAD ATTORNEYS, Lynn & Cahill, LLP, New York, NY.

For Paul Kasmin Gallery, Inc., Cross Defendant: George W. Wright, LEAD ATTORNEY, Narinder S. Parmar, George W. Wright & Associates, LLC, New York, NY.

Page 423

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge.

A valuable painting by the famous American abstract painter, Frank Stella, was damaged while being transported by the Loretta Howard Gallery Inc. (the " Howard Gallery" ). The painting's insurer, AXA Art Insurance Corporation (" AXA" ), claims that the two-year statute of limitations period contained in its policy shelters it from liability in this action. Because the language of the policy is not clear enough to avoid long-established principles of interpretation under New York law, the Court denies AXA's motion to dismiss.

I. Background[1]

In June 2011, the Howard Gallery and AXA executed an insurance contract pursuant to which AXA agreed to insure certain property in the Howard Gallery's possession (the " Policy" ). Third-Party Complaint (" TPC" ) at ¶ 7. The Policy provided, in relevant part, that the Howard Gallery may not " bring a legal action against [AXA] under this coverage unless . . . the action is brought within two years after [the Howard Gallery] first [has] knowledge of die 'loss.'" Declaration of Ronald W. Adelman in Support of Motion to Dismiss (" Adelman Decl." ), Ex. B (Policy) at 8. The Policy further provided that " 'Loss' means accidental loss or damage." Id. at 9.

Among other property, the Policy covered a valuable Frank Stella painting entitled " WLID," which had been consigned to the Howard Gallery by the plaintiff in this action, No Hero Enterprises B.V. (" No Hero" ). See TPC at ¶ 7; No Hero Amended Complaint at ¶ 2. On or about September 6, 2011, the painting was badly damaged in transport from the Howard Gallery to the Paul Kasmin Gallery. No Hero Amended Complaint at ¶ 17-18. The Howard Gallery promptly filed a claim for the damage to the painting under the Policy. TPC at ¶ 8. AXA denied the claim on February 16, 2012.[2 ...


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