United States District Court, S.D. New York
For Janna Delury, Gilbert Seaman, Plaintiffs,
Third Party Defendants: William Gary Greenberg, LEAD ATTORNEY, Greenberg & Massarelli, LLP, Purchase, NY; Rebecca Foley Greenberg, Rebecca Greenberg, PC, Purchase, NY.
For John E. Van Bramer, Jeanne M. Van Bramer, Defendants, Third Parties Plaintiffs, Counter Defendants: John Michael Shields, Devitt Spellman Barrett, Smithtown, NY; Joshua Samuel Shteierman, Kelly Elizabeth Wright, Devitt, Spellman, Barrett, L.L.P., Smithtown, NY.
For Disconnect, LLC,
Third Party Defendant, Counter Claimant: Raymond M. D'Erasmo, Savona & Scully, New York, NY.
Vincent L. Briccetti, United States District Judge.
Third-party plaintiffs John E. Van Bramer (" Mr. Van Bramer") and Jeanne M. Van Bramer (collectively, the " Van Bramers") bring this action against third-party defendant Disconnect, LLC (" Disconnect"), for negligence, breach of contract, and fraud.
The two counts in the Van Bramers' third-party complaint are styled as " negligence" (Third-Party Compl. at 6), and " breach of contract/fraud/misrepresentation." (Id. at 4). The Van Bramers appear to bring two separate claims under the heading of breach of contract/fraud/misrepresentation. First, the Van Bramers assert Disconnect breached an agreement to defend and indemnify the Van Bramers in this action. Second, the Van Bramers assert Disconnect fraudulently induced them to rent their home to Disconnect for use in a film produced by Disconnect, by deceiving them into believing they were named as additional insureds on Disconnect's insurance policy.
Now pending is Disconnect's motion for summary judgment (Doc. #71), which, for the following reasons, is DENIED.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § § 1332 and 1367.
The parties have submitted briefs, statements of facts pursuant to Local Civil Rule 56.1, and affirmations with supporting exhibits, which reflect the following factual background.
I. The Contract Negotiations
Disconnect is a film production company. In 2011, Disconnect sought a location to film a movie. Disconnect employed location manager Damon Gordon to scout locations and negotiate rental agreements. In or around August 2011, Gordon and director Henry Alex Ruben were on a scouting trip when Ruben saw the Van Bramers' home at 42 Dexter Street in Yonkers, New York, and " fell in love with [the] house." (Wright Decl. Ex. D). Gordon subsequently contacted Mr. Van Bramer, and explained Disconnect was " doing a small-budget film" and " wanted to rent the house to film." (Wright Decl. Ex. C).
At first, Mr. Van Bramer " wasn't that interested" in renting his home to Disconnect (Wright Decl. Ex. C), but he eventually agreed after multiple conversations with Gordon. Throughout the course of these conversations, Mr. Van Bramer and Gordon discussed insurance coverage multiple times. Mr. Van Bramer testified Gordon " assured [him] multiple ways, verbally and in e-mail and [by] producing documents to [him], that [the Van Bramers] were fully insured." (Id.). Gordon acknowledged he told Mr. Van Bramer that Disconnect " ha[s] insurance" which " should" cover the Van Bramers. (Wright Decl. Ex. D).
Eventually, Gordon sent Mr. Van Bramer a copy of a " standard form" rental agreement, called a Location Agreement. (Wright Decl. Ex. D). The Location Agreement contains an " Indemnity/Insurance" provision. (D'Erasmo Decl. Ex. K). This provision states, in relevant part:
Producer will use reasonable care to prevent damage to the Property and agrees to indemnify and hold Owner harmless from and against any and all claims, demands, liabilities, damages losses and/or expenses (including, without limitation, reasonable outside attorney's fees and costs) arising from or in connection with any material breach of any of Producer's representations, warranties or agreements set forth herein and/or any gross negligence or willful misconduct on Producer's part caused directly by Producer's use of the Property. Producer shall maintain commercial general liability insurance in an amount no less than One Million Dollars ($1, 000, 000).
(Id.) Mr. Van Bramer testified that after receiving the agreement, although he " had no conversations about changes of the language" in the indemnification provision (Wright Decl. Ex. C at 34), he asked " to be named as additionally insured" on Disconnect's insurance policy. (Id. at 32). When the Location Agreement was signed, Gordon provided Mr. Van Bramer a Certificate of Liability Insurance, and " told [Mr. Van Bramer] this means [the Van Bramers] were fully covered." (Id. at 43). Mr. Van Bramer understood Gordon to be representing that the Van Bramers were named as additional insureds on Disconnect's insurance policy.
At some point during their discussions, Mr. Van Bramer and Gordon agreed that the rental payment would take the form of a check made out to Mr. Van Bramer's business, Regency Elevator Products, Corp. (" Regency"). Regency had no ownership interest in the Van Bramers' home. Gordon also apparently listed Regency as " Owner" on the first page of the Location Agreement. (D'Erasmo Decl. Ex. K). Mr. Van Bramer testified he never considered whether Regency should be listed on the Location Agreement; he " just thought about the check." (Wright Decl. Ex. C). The executed Location Agreement states " [t]his Agreement is made between Disconnect, LLC ('Producer') and Regency ...