Opinion
Index No. 159548/2016
04-20-2020
ADMIRAL INDEMNITY CO. a/s/o Lenox Condominium, Plaintiff, v. Timothy JOHNSON, Defendant.
Wenig & Wenig, PLLC, New York, NY (Alan Wenig of counsel), for plaintiff. Law Offices of Karen L. Lawrence, Brooklyn, NY (Rebecca S. Casas of counsel), for defendant.
Wenig & Wenig, PLLC, New York, NY (Alan Wenig of counsel), for plaintiff.
Law Offices of Karen L. Lawrence, Brooklyn, NY (Rebecca S. Casas of counsel), for defendant.
Gerald Lebovits, J.
This motion arises out of a subrogation action stemming from an apartment fire. Lenox Condominium (Lenox), the subrogor of plaintiff, Admiral Indemnity Company, is the condominium association for 380 Lenox Avenue in New York County. Defendant Timothy Johnson owned, and resided in, a unit at 380 Lenox Avenue. In June 2016, a fire broke out in Johnson's apartment, causing substantial property damage to the building. Admiral provided insurance to Lenox, and alleges that it made a payment to Lenox to cover that property damage (less a small deductible). Admiral then brought this action as Lenox's subrogee to recover the balance from Johnson.
Johnson now moves to dismiss under CPLR 3211 (a) (1) and (a) (7). Alternatively, Johnson moves for leave to amend his answer under CPLR 3025 (b), and requests summary judgment dismissing the action under CPLR 3212 based on the amended answer. Johnson's motion to dismiss and his motion for leave to amend are denied.
Discussion
On a motion to dismiss pursuant to CPLR 3211, "the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." ( Leon v. Martinez , 84 NY2d 83, 87-88 [1994] [internal citations omitted].) Where a motion to dismiss is based on documentary evidence pursuant to CPLR 3211 (a) (1), the claim will be dismissed "if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." ( Id. at 88.) A motion to dismiss under CPLR 3211 (a) (7), for failure to state a cause of action, must be denied if the factual allegations contained within 'the "pleadings' four corners ... manifest any cause of action cognizable at law." ( 511 W. 232nd Owners Corp. v. Jennifer Realty Co. , 98 NY2d 144, 151-52 [2002] [internal quotation marks and citations omitted].)
In moving to dismiss, Johnson argues that Admiral's action is subject to dismissal under both CPLR 3211 (a) (1) and (a) (7) because Lenox (assertedly) agreed to waive any subrogation claim against unit owners in the building, both through the condominium's by-laws and through the terms of the Admiral insurance policy. This court disagrees.
Johnson relies on language in article V, § 2 of the condominium by-laws providing that
"Unit Owners shall not be prohibited from carrying other insurance for their own benefit provided that all such policies shall contain waivers of subrogation and further provided that the liability of the carriers issuing insurance obtained by the Board of Managers shall not be affected or diminished by reason of such additional insurance carried by any unit owner."
(Condominium By-laws, NYSCEF No. 33 at 17.)
In this action, however, Admiral is not acting as the subrogee of another unit owner, but as the subrogee of the condominium association itself. The present action is thus governed by a different paragraph of article V, section 2 of the by-laws, setting out the condominium board's obligation to obtain insurance: "[a]ll policies of physical damage insurance" that the board is required to obtain and maintain under this section of the by-laws "shall, if possible , contain waivers of subrogation." (NYSCEF No. 33 at 16 [emphasis added].) That by-laws provision, although it may strongly endorse waivers of subrogation, cannot be said to require categorically that the board's physical damage insurance include a waiver—in marked contrast to the by-laws language governing unit owners ' insurance. The provision does not, therefore, necessarily bar this subrogation action. (See Admiral Indemnity v. Onetti (2008 NY Slip Op. 33710 [U], at *6-*7 [Sup Ct., NY County Nov. 17, 2008] [addressing by-law language providing that "[a]ll policies of physical damage insurance shall contain, to the extent obtainable, waivers of subrogation"].) And although it is at least possible that the board could have obtained a policy from Admiral that included a subrogation waiver, and therefore was required under the by-law to have done so, there is nothing in the record on that point.
Johnson also relies on language in the Admiral insurance policy itself. Subsection I of the policy's Commercial Property Conditions provides that any right of the policyholder "to recover damages from another" for a covered loss is "transferred to [Admiral] to the extent of [the] payment" by Admiral (i.e. , subrogation), but that the policyholder "may waive your rights against another party in writing" prior to the covered loss. (See Insurance Policy, NYSCEF No. 42 at 48.) This language, though, merely permits a subrogation waiver (for example through a provision in the condominium by-law); it does not itself constitute or require a waiver.
The documentary evidence here (i.e. , the condominium by-law and the Admiral insurance policy) thus does not conclusively refute Admiral's claims in the action. Similarly, Admiral's complaint has stated a claim for relief as the subrogee of Lenox. Johnson's motion to dismiss under CPLR 3211 is denied. And because Johnson's arguments under CPLR 3211 are meritless, his motion under CPLR 3025 (b) for leave, in essence, to assert those very arguments as new affirmative defenses in an amended answer is denied as well.
Accordingly, it is
ORDERED that defendant's motion to dismiss under CPLR 3211 is denied; and it is further
ORDERED that defendant's motion for leave to amend his answer under CPLR 3025 (b) is denied; and it is further
ORDERED that when the parties are again permitted to file papers in this action by order of Chief Administrative Judge Lawrence Marks, the parties shall file a joint letter indicating mutually agreeable dates for a status conference in this action, and shall notify the court of the filing of that letter by email to mhshawha@nycourts.gov.