FILED: NEW YORK COUNTY CLERK 11/28/2012 INDEX NO /2012 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/28/2012

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1 FILED: NEW YORK COUNTY CLERK 11/28/2012 INDEX NO /2012 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/28/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK AMERICAN HOME ASSURANCE COMPANY, Index No /2012 Plaintiff, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, ALCOA INC., MARIO & DIBONO PLASTERING CO. INC., TISHMAN REALTY & CONSTRUCTION CO., INC., TISHMAN LIQUIDATING CORPORATION, TEECO PROPERTIES L.P., TMLC CORP., f/k/a TISHMAN MANAGEMENT & LEASING CORP., TISHMAN SPEYER PROPERTIES L.P., TISHMAN SPEYER PROPERTIES, INC., TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, EQUITY HOLDINGS I CORP., f/k/a TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, f/k/a TISHMAN REALTY & CONSTRUCTION CO., INC., f/k/a TISHMAN CONSTRUCTION & RESEARCH CO. INC., TISHMAN REALTY & CONSTRUCTION CO., INC., TTV REALTY HOLDINGS, INC., f/k/a TISHMAN REALTY & CONSTRUCTION CO., INC., f/k/a TIONA REALTY & CONSTRUCTION CO., INC., TISHMAN CONSTRUCTION CORPORATION OF MANHATTAN, f/k/a TISHMAN CONSTRUCTION & RESEARCH CORPORATION, AND TISHMAN CONSTRUCTION CORPORATION, Defendants. PLAINTIFF S MEMORANDUM OF LAW IN OPPOSITION TO TISHMAN SPEYER S MOTION TO DISMISS

2 TABLE OF CONTENTS Page PRELIMINARY STATEMENT...1 ARGUMENT...3 I. The Dispute Between American Home And Tishman Speyer Is A Justiciable Controversy That Meets The Pleading Requirements Under New York Law...3 CONCLUSION...6 i

3 CASES Associated Indem. Corp. v. Fair child Indus., Inc., 961 F.2d 32 (2d Cir.1992)...6 Booth Mem'l Hosp. & Med. Ctr. v. Merson & Co., Inc., 162 A.D.2d 100, 556 N.Y.S.2d 58 (N.Y. App. Div. 1990)...3, 6 Century Indemnity Company v. Anheuser-Busch, Inc., No. 4:11-CV-1097, 2012 WL (E.D. Mo. 2012)...5 Chanos v MADAC, LLC, 74 A.D.3d 1007, 903 N.Y.S.2d 506 (N.Y. App. Div. 2010)...3 Costa v. Colonial Penn Ins. Co., 204 A.D.2d 591, 612 N.Y.S.2d 617 (N.Y. App. Div. 1994)...3, 6 Foley v. D Agostino, 21 A.D.2d 60, 248 N.Y.S.2d 121 (1964)...2, 4 Long Island Lighting Co. v. Allianz Underwriters Ins. Co., 35 A.D.3d 253, 826 N.Y.S.2d 55 (N.Y. App. Div. 2006)...3, 6 STATUTES C.P.L.R C.P.L.R , 4 ii

4 Plaintiff American Home Assurance Company ( American Home ) respectfully submits the Affirmation of Bryce L. Friedman, dated November 28, 2012, ( Friedman Aff. ) and this Memorandum of Law in Opposition to Defendants Tishman Speyer Properties L.P. and Tishman Speyer Properties, Inc. s (collectively, Tishman Speyer ) Motion to Dismiss. PRELIMINARY STATEMENT In 1966, American Home issued a general liability insurance policy to The Port Authority of New York and New Jersey in connection with the construction of the original World Trade Center Hudson Tubes Project (the Policy ). The Policy provides certain coverage for general contractors and subcontractors of the Port Authority. Tishman Realty & Construction Co. was the general contractor on the World Trade Center Hudson Tubes Project. Tishman Realty & Construction Co. has since transferred its assets in a series of opaque, complex and non-public corporate transactions, and dissolved. There is an actual, justiciable controversy as to whether Tishman Speyer is the successor to Tishman Realty & Construction Co. and insured under the Policy for asbestos-related claims arising from the World Trade Center Hudson Tubes Project. This is a concrete, clear and present dispute between the parties. Tishman Speyer is either entitled to coverage under Policy or it is not. If Tishman Speyer is entitled to coverage under the Policy then this Court can determine that to be the case. Alternatively, if Tishman Speyer is not entitled to coverage under the Policy then the Court can similarly determine that as well. American Home has been and continues to be asked to defend asbestos-related personal injury cases that are served on Tishman Speyer (among other Tishman entities). Examples of such claims are attached to the Friedman Aff. as Exs. A, B, C and D. Whether American Home must provide coverage for those claims is a justiciable controversy. While

5 Tishman Speyer faults the complaint for not specifically identifying each and every claim served on Tishman Speyer and provided to American Home for a defense, for not providing details of Tishman s complex, opaque and non-disclosed corporate history, and for not using certain magic words, none of the foregoing is required under New York pleading law. Under New York law, a pleading shall be liberally construed and need only contain [s]tatements sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and the material elements of each cause of action or defense. Foley v. D Agostino, 21 A.D.2d 60, 63, 65, 248 N.Y.S.2d 121 (1964) (quoting C.P.L.R. 3013). Here, American Home has met its pleading burden. American Home s Complaint, dated April 4, 2012, provides both the Court and the parties with the notice required by C.P.L.R The Complaint seeks a declaration as to which, if any, of [the Tishman entities] has rights and obligations under the Policy [and] a declaration that it has no obligation to defend or indemnify such entities under the Policy against asbestos-related personal injury claims. (Compl. 3). Tishman Speyer cannot be permitted to hide behind its complex corporate history which has been hidden from American Home. If Tishman Speyer wanted to end this controversy, it could disclaim coverage under the Policy for asbestos-related claims. Tellingly, Tishman Speyer has refused to do so. Tishman Speyer must voluntarily acknowledge that it is not entitled to coverage from American Home for asbestos-related claims against it or this Court should hear this controversy and enter a judgment declaring that Tishman Speyer is not entitled to coverage under the Policy. Thus, for these reasons discussed further below, Tishman Speyer s Motion should be denied and this litigation allowed to proceed. 2

6 ARGUMENT I. The Dispute Between American Home And Tishman Speyer Is A Justiciable Controversy That Meets The Pleading Requirements Under New York Law American Home has alleged an actual and justicable controversy as to Tishman Speyer. C.P.L.R provides in relevant part that: The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. A justiciable controversy is a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect. Chanos v MADAC, LLC, 74 A.D.3d 1007, 1008, 903 N.Y.S.2d 506 (N.Y. App. Div. 2010) ( The primary purpose of the declaratory judgment is to stabilize an uncertain or dispute jural relationship with respect to present or prospective obligations. ). In the insurance context, disputes have been found justiciable in cases where it is not certain, but only probable, that an underlying claim will reach a carrier. See, e.g., Long Island Lighting Co. v. Allianz Underwriters Ins. Co., 35 A.D.3d 253, , 826 N.Y.S.2d 55 (N.Y. App. Div. 2006) (Declaratory judgment against excess insurer justiciable because the potential liability may reach excess policy); Costa v. Colonial Penn Ins. Co., 204 A.D.2d 591, 592, 612 N.Y.S.2d 617 (N.Y. App. Div. 1994) (injured s declaratory judgment action against insured s insurer justiciable even though injured had not obtained a judgment against the insured); Booth Mem'l Hosp. & Med. Ctr. v. Merson & Co., Inc., 162 A.D.2d 100, 100, 556 N.Y.S.2d 58 (N.Y. App. Div. 1990) (justiciable because plaintiff demonstrated that potential liability may extend into the coverage contracted for ). Further, under New York law, a complaint for a declaratory judgment (like complaints for other causes of action) shall be liberally construed and need only contain [s]tatements sufficiently particular to give the court and parties notice of the transactions, 3

7 occurrences, or series of transactions or occurrences intended to be proved and the material elements of each cause of action or defense. Foley, 21 A.D.2d at 63, 65 (citing C.P.L.R. 3013) ( The basic requirement [now] is that the pleadings identify the transaction and indicate the theory of recovery with sufficient precision to enable the court to control the case and the opponent to prepare. So, generally speaking, pleadings should not be dismissed or ordered amended unless the allegations therein are not sufficiently particular to apprise the court and parties of the subject matter of the controversy. ) (internal citations and quotations omitted). This dispute meets all the requirements. This case is both justiciable and properly plead. The Complaint seeks a declaration as to which, if any, of [the Tishman entities] has rights and obligations under the Policy [and] a declaration that it has no obligation to defend or indemnify such entities under the Policy against asbestos-related personal injury claims. (Compl. 3). The Complaint further lays out the identity of the various Tishman entities based upon the information that is publically available. (Compl. 9-20). And the Complaint pleads specific facts related to Tishman Speyer and the dispute between the parties: The Port Authority, Alcoa, Di Bono and certain of the Tishman entities have been the subject of thousands of asbestos-related personal injury claims allegedly arising from exposure to asbestos at the WTC site There are currently thousands of WTC Asbestos Claims pending against The Port Authority, Alcoa, DiBono, and certain of the Tishman entities. (Compl. 26). * * * An entity named Tishman Realty & Construction Co. Inc., entered into a contract with Port Authority as its agent and contractor. It underwent a series of corporate transactions through which it disposed of certain assets and liabilities, as well as name changes and corporate reorganizations in and after As a result, certain Tishman entities have sought and may seek coverage under the Policy. There is a dispute regarding which Tishman entity, if any, may have rights or obligations under the Policy. (Compl. 32). 4

8 Here, as plead in the Complaint, the dispute between the parties is an actual dispute that will have a practical effect on the parties. American Home is seeking a declaration as to whether Tishman Speyer is the successor to Tishman Realty & Construction Co. and insured under the Policy for asbestos-related claims arising from the World Trade Center Hudson Tubes Project. The corporate relationship between the parties is opaque to say the least. As a matter of public record, it appears that there have been numerous corporate transactions involving various Tishman entities and the Word Trade Center Hudson Tubes Project contract. Thus, based upon the Court s decision in this case, Tishman Speyer will either have the right to indemnification under the Policy or it will not. Indeed, if there was no controversy here (as Tishman Speyer contends) then Tishman Speyer would agree it did not succeed to the Tishman Realty & Construction Co. World Trade Center contract and is not entitled to coverage under the Policy. Instead, Tishman Speyer nitpicks the complaint. As Tishman Speyer knows, asbestos-related personal injury plaintiffs name Tishman Speyer Properties, Inc. or Tishman Liquidating Corp. c/o of Tishman Speyer Properties, L.P. and those complaints have been sent to American Home for a defense. See Friedman Aff., Exs. A, B, C and D. Allowing discovery to proceed at this time, will enable the parties to better determine if Tishman Speyer is (or is not) entitled to coverage under the Policy. Tishman Speyer ought not be permitted to hide behind opaque and hidden corporate transactions in order to put off until another day a judicial determination that it is not entitled to coverage under the Policy. Finally, Century Indemnity Company v. Anheuser-Busch, Inc., No. 4:11-CV-1097, 2012 WL (E.D. Mo. 2012) does not support dismissal in this case. In Century Indemnity, a federal district court held that an insurer had failed to plead the actual controversy 5

9 requirement of Article III of the U.S. Constitution, and therefore the federal court lacked subject matter jurisdiction as a matter of federal law WL , *4. This, however, is not the law in New York. As discussed supra, in the insurance context, New York Courts have held that declaratory judgments may proceed even when it is not certain that an insurer s policy will be impacted. See, e.g., Long Island Lighting Co., 35 A.D.3d at ; Costa, 204 A.D.2d at 592 ); Booth Mem'l Hosp. & Med. Ctr., 162 A.D.2d at 59. Similarly, federal courts have also found that in the insurance context declaratory judgments may proceed even when an insurer s liability is not certain. See, e.g., Associated Indem. Corp. v. Fair child Indus., Inc., 961 F.2d 32, 35 (2d Cir.1992) ( [L]itigation over insurance coverage has become the paradigm for asserting jurisdiction [of a declaratory judgment action] despite future contingencies that will determine whether a controversy ever actually becomes real. ) (internal quotation marks omitted). Thus, contrary to Tishman Speyer assertions, Century Indemnity is not supportive of their Motion. CONCLUSION For the reasons stated above, Plaintiff American Home respectfully requests that this Court deny Tishman Speyer s Motion to Dismiss. Alternatively, American Home should be granted leave to re-plead the Complaint to the extent the Court determines the specifics of a justiciable controversy have not been adequately pled. 6

10 Dated: New York, New York November 28, 2012 SIMPSON THACHER & BARTLETT LLP By: /s/ Bryce L. Friedman Mary Beth Forshaw Bryce L. Friedman Elisa Alcabes 425 Lexington Avenue New York, NY Telephone: (212) Facsimile: (212) Attorneys for American Home Assurance Company 7