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Mack-Cali Realty Corp. v. Peerless Ins. Co.

United States District Court, S.D. New York

July 24, 2015

MACK-CALI REALTY CORPORATION ET AL., Plaintiffs,
v.
PEERLESS INSURANCE COMPANY, Defendant

For Mack-Cali Realty Corporation, Mack-Cali Realty, L.P., So. Westchester Realty Associates, L.L.C., Mack-Cali So. West Realty Associates L.L.C., Plaintiffs: Daniel Barnett Grossman, James FX Hiler, Mitchell Scott Cohen, Wechsler & Cohen, LLP, New York, NY.

For Peerless Insurance Company, Defendant: Marshall Todd Potashner, LEAD ATTORNEY, David Ross Shyer, Jaffe & Asher LLP, New York, NY; Daniel Barnett Grossman, James FX Hiler, Mitchell Scott Cohen, Wechsler & Cohen, LLP, New York, NY.

Page 450

OPINION AND ORDER

John G. Koeltl, United States District Judge.

The Mack-Cali Realty Corporation (" Mack-Cali Corp." ), Mack-Cali Realty, L.P. (" Mack-Cali LP" ), So. Westchester Realty Associates L.L.C. (" Westchester" ), and Mack-Cali So. West Realty Associates L.L.C. (" Mack-Cali Associates" ) (collectively,

Page 451

the " plaintiffs" ) bring this action against the defendant Peerless Insurance Company (" Peerless" ). The plaintiffs allege that Peerless violated insurance agreements by refusing to defend them in two personal injury lawsuits that are proceeding in the New York State Supreme Court, one in New York County and the other in Westchester County.

The personal injury actions arose out of slip-and-fall accidents at premises for which the plaintiffs had responsibility. Peerless provided liability coverage to the snow removal contractor hired to maintain safe conditions at the premises, and the plaintiffs were " other insureds" under the insurance policies. Peerless alleges that the " other insured" coverage ended when the accidents occurred because the contractor had completed its snow removal work, and therefore the work had been put to its " intended use." The plaintiffs contend that Peerless had a duty to defend them and that the snow removal responsibilities were ongoing, had not concluded, and therefore were not yet put to their " intended use." The plaintiffs now move for partial summary judgment pursuant to Federal Rule of Civil Procedure 56.

The Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.[1] For the following reasons, the motion is granted in part and denied in part.

I.

The standard for granting summary judgment is well established. " The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1223 (2d Cir. 1994). " [T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224.

The moving party bears the initial burden of " informing the district court of the basis for its motion" and identifying the matter that " it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)

Page 452

(citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the non-moving party must produce evidence in the record and " may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) (internal citations omitted).

II.

The following facts are undisputed unless otherwise noted.

A.

Westchester owns 6 Executive Plaza, and Mack-Cali Associates owns 100 Corporate Boulevard. See Plaintiffs' Local Rule 56.1 Statement of Undisputed Material Facts (" Pl. 56.1 Stmt." ) ¶ ¶ 3-4, 9; Defendant's Response to Rule 56.1 Statement (" Def. 56.1 Resp." ) ¶ ¶ 3-4, 9. Both properties are located at the South Westchester Executive Park Complex (the " SWEP complex" ). Pl. 56.1 Stmt. ¶ ¶ 7-9; Def. 56.1 Resp. ¶ ¶ 7-9. Westchester, Mack-Cali LP, and Mack-Cali ...


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