FILED: NEW YORK COUNTY CLERK 06/13/ :22 PM INDEX NO /2016 NYSCEF DOC. NO RECEIVED NYSCEF: 06/13/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK THE BURLINGTON INSURANCE COMPANY, Plaintiff, Index No / against - SECOND THIRD- KOOKMIN BEST INSURANCE CO., LTD. (US PARTY SUMMONS BRANCH) (F/K/A LIG INSURANCE CO., LTD.), NATIONAL UNION FIRE INS. CO. OF PITTSBURGH, P.A., and NEW YORK SUPERMARKET EAST BROADWAY, INC., Defendants, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, P.A., Third-Party Plaintiff, - against - AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, Third-Party Defendant, AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, a/s/o WINKING GROUP, LLC, Second Third-Party Plaintiff, - against - NEW YORK SUPERMARKET EAST BROADWAY, INC., Second Third-Party Defendant. To The Above-Named Second Third-Party Defendant: 1 of 13

2 YOU ARE SUMMONED to answer the Second Third-Party Complaint in this action and to serve a copy of your Answer, or, if the Second Third-Party Complaint is not served with this Summons, to serve a Notice of Appearance, on the plaintiff's attorneys within twenty (20) days after the service of this Summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this Summons is not personally delivered to you within the State of New York); and in case your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. Dated: New York, New York November 20, 2017 COUGHLIN DUFFY LLP By: /s/ Steven G. Adams Steven G. Adams Patrick K. Coughlin To: Wall Street Plaza 88 Pine Street, 28th FlOOr New York, New York (212) Attorneys for Third-Party Defendant/Second Third-Party Plaintiff American Guarantee and Liability Insurance Company New York Supermarket East Broadway, Inc. c/o Michael E. Pressman, Esq. Law Offices of Michael E. Pressman 125 Maiden Lane New York, New York (212) Law Offices of Michael Pressman 125 Maiden Lane New York, New York (212) Attorneys for Defendants Kookmin Best Insurance Co., Ltd. (US Branch) (f/k/a LIG Insurance Co., Ltd.), and New York Supermarkets East Broadway, Inc. 2 of 13

3 Robert P. Pagano, Esq. Steinberg & Cavaliere, LLP 50 Main Street White Plains, New York Attorneys for Defendant/Third-Party Plaintiff National Union Fire Insurance Company Adrian-Cassidy & Associates, LLC 200 Park Avenue, Suite 1700 New York, New York (646) Attorneys for Plaintiff The Burlington Insurance Company 3 of 13

4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK THE BURLINGTON INSURANCE COMPANY, Plaintiff, Index No / against - SECOND THIRD- KOOKMIN BEST INSURANCE CO., LTD. (US PARTY COMPLAINT BRANCH) (F/K/A LIG INSURANCE CO., LTD.), NATIONAL UNION FIRE INS. CO. OF PITTSBURGH, P.A., and NEW YORK SUPERMARKET EAST BROADWAY, INC., Defendants, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, P.A., Third-Party Plaintiff, - against - AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, Third-Party Defendant, AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, a/s/o WINKING GROUP, LLC, Second Third-Party Plaintiff, - against - NEW YORK SUPERMARKET EAST BROADWAY, INC., Second Third-Party Defendant. Third-Party Defendant/Second Third-Party Plaintiff American Guarantee and Liability (" Winking" Insurance Company ("AGLIC"), as subrogee of Winking Group, LLC ("Winking"), by and 4 of 13

5 through its attorneys, Coughlin Duffy LLP, as and for its Second Third-Party Complaint against Defendant/Second Third-Party Defendant New York Supermarket East Broadway, Inc. ("NY Supermarket" Supermarket"), alleges upon knowledge as to its own acts and otherwise upon information and belief as follows as follows: Nature of the Action 1. AGLIC, as subrogee of Winking, brings this action for contractual indemnity and breach of contract against NY Supermarket in connection with the underlying personal injury action styled Xuan Quan Xu v. New York Supermarket, Inc., et al., in New York Supreme Court, Action" New York County, and bearing Index. No /2011 (the "Underlying Action"). 2. In the Underlying Action, Winking was granted summary judgment that NY Supermarket owed it full contractual indemnity with respect thereto. By virtue of AGLIC's contribution towards the settlement of the Underlying Action on Winking's behalf, Winking's right to contractual indemnity and/or enforcement of the contractual-indemnity ruling against NY Supermarket has been transferred to AGLIC. 3. Furthermore, by way of its sublease agreement with Winking concerning the "Premises" subject property at East Broadway, Manhattan, New York (the "Premises"), NY Supermarket agreed to procure certain insurance coverage naming Winking as an insured thereunder. In light of the positions taken by Defendant/Third-Party Plaintiff National Union (" Fire Insurance Company of Pittsburgh, PA ("National Union" - Union") NY Supermarket's excess insurer - NY Supermarket breached its obligations under the sublease agreement with respect to insurance procurement. Accordingly, AGLIC is entitled to recovery from NY Supermarket on its subrogated claim for breach of contract. 5 of 13

6 The Parties 4. AGLIC is a New York corporation, engaged in the insurance business, with a statutory home office located at 4 World Trade Center, 150 Greenwich Street, New York, New York 10007, and a principal place of business in Illinois. It is authorized to transact business, and has transacted business, in New York. 5. NY Supermarket is a corporation organized and existing pursuant to the laws of the State of New York, with its principal place of business located at 75 East Broadway, New York, New York, The NY Supermarket Sublease 6. AGLIC repeats and reiterates each and every allegation set forth in Paragraphs 1 through 5 with the same force and effect as though fully set forth herein. 7. On or around December 28, 2001, Winking subleased the Premises to NY Sublease" Supermarket (the "NY Supermarket Sublease"). 8. Pursuant to Section 9.(A) of the NY Supermarket Sublease, NY Supermarket agreed to indemnify and save harmless Winking "from and against all liability, damage, penalties, judgments or claims of whatever nature rising from injury to person or to property sustained by anyone in or about the [Premises]." 9. Pursuant to Section 17. of NY Supermarket Sublease, NY Supermarket further agreed to indemnify, defend and save harmless Winking against and from all liabilities, fines, obligations, damages, penalties, claims, costs, charges and expenses, including without limitation reasonable attorneys' fees which may be imposed upon or incurred by" Winking by reason of NY Supermarket's negligence, any accident or injury occurring in or about the Premises and/or any matter arising out of NY Supermarket's use of the Premises. 6 of 13

7 10. Furthermore, as set forth in Section 9.(C) of the NY Supermarket Sublease, NY Supermarket agreed to procure commercial general liability insurance coverage naming Winking as an insured thereunder with limits not less than $3 million per occurrence and $5 million in the aggregate. The Underlying Action 11. AGLIC repeats and reiterates each and every allegation set forth in Paragraphs 1 through 10 with the same force and effect as though fully set forth herein. "Claimant" 12. On or around September 28, 2010, Xuan Quan Xu (the "Claimant"), an employee of NY Supermarket, allegedly suffered injuries after falling one story down a freight elevator/dumbwaiter installed at the Premises by NY Supermarket. 13. The Claimant filed the Underlying Action on or around April 26, 2011, against NY Supermarket, Winking and the City of New York, seeking damages for his alleged injuries. 14. On or around April 4, 2012, Winking filed a third-party action against NY Supermarket, asserting claims for contractual and common-law indemnity, contribution and breach of contract for failure to procure insurance pursuant to the terms of the NY Supermarket Sublease. 15. On or around September 4, 2014, Winking filed a motion for summary judgment on, inter alia, its contractual-indemnity claim, seeking a ruling that NY Supermarket owed it full contractual indemnity with respect to any liability arising from the Claimant's alleged injuries. 16. By decision and order dated April 27, 2015, the Court in the Underlying Action granted Winking's motion for summary judgment in pertinent part, holding that Winking was entitled to full contractual indemnity from NY Supermarket with respect to the Underlying Action. 7 of 13

8 The Insurance Policies at Issue 17. AGLIC repeats and reiterates each and every allegation set forth in Paragraphs 1 through 17 with the same force and effect as though fully set forth herein. 18. Pursuant to the terms of the NY Supermarket Sublease, NY Supermarket procured a commercial general liability insurance policy from Defendant Kookmin Best Insurance Company, Ltd. (US Branch) (F/K/A LIG Insurance Company, Ltd.) (hereinafter, "LIG"), for the period January 1, 2010, to January 1, 2011, with effective limits of $1 million per occurrence and Policy" $2 million in the aggregate (the "LIG Policy"). By way of endorsement, the LIG Policy expressly states that Winking qualifies as an additional insured thereunder. 19. NY Supermarket also procured a commercial excess liability insurance policy from National Union for the period January 1, 2010, to January 1, 2011, with effective limits of Policy" $4 million per occurrence and in the aggregate (the "National Union Policy"). Pursuant to the terms of the National Union Policy, Winking qualifies as an insured thereunder. 20. Winking, for its part, maintained a commercial general liability insurance policy (" Burlington" with Plaintiff Burlington Insurance Company ("Burlington"), with effective dates of July 19, 2010, to July 19, 2011, and subject to limits of $1 million per occurrence and $2 million in the Policy" aggregate (the "Burlington Policy"). 21. Winking also procured a commercial umbrella liability insurance policy from AGLIC for the period July 19, 2010, to July 19, 2011, with effective limits of $10 million per Policy" occurrence and in the aggregate (the "AGLIC Umbrella Policy"). 22. In Section VI. thereof, the AGLIC Umbrella Policy contains the following provision concerning its subrogation rights: 8 of 13

9 25. Transfer ofrights ofrecovery Against Others to Us a. If the insured has rights to recover all or part of any payment we have made under this insurance, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring suit or transfer those rights to us and help us enforce them. AGLIC's Contribution towards Settlement of the Underlying Action 23. AGLIC repeats and reiterates each and every allegation set forth in Paragraphs 1 through 22 with the same force and effect as though fully set forth herein. 24. On or around January 12, 2017, AGLIC paid $100,000 in connection with the Insurers' settlement of the Underlying Action on behalf of Winking. 25. By virtue of its contribution towards settlement and pursuant to Section VI.15. of the AGLIC Umbrella Policy noted above, AGLIC became subrogated to any claims Winking had or may have had against any third parties in connection with the Underlying Action. The Coverage Action 26. AGLIC repeats and reiterates each and every allegation set forth in Paragraphs 1 through 25 with the same force and effect as though fully set forth herein. 27. On or about June 1, 2016, Burlington filed the instant action (the "Coverage Action" Action") against LIG, National Union and NY Supermarket seeking, inter alia, a declaration that Winking is entitled to coverage under the LIG and National Union Policies with respect to the Underlying Action. 28. On or about October 28, 2016, National Union filed an Answer, Counterclaim and Crosselaim, seeking, inter alia, a declaration that any coverage provided to Winking under the National Union Policy in connection with the Underlying Action is excess to that provided under the Burlington Policy. 9 of 13

10 29. On or about October 10, 2017, National Union filed a Third-Party Complaint in Complaint" the Coverage Action against AGLIC (the "Third-Party Complaint"), seeking a declaration that: (i) any coverage afforded to Winking under the National Union Policy was excess to the AGLIC Umbrella Policy; (ii) alternatively, that the National Union and AGLIC Umbrella Policies provide co-excess coverage to Winking with respect to the Underlying Action; and (iii) AGLIC is required to reimburse National Union for its contribution towards the settlement of the Underlying Action. FIRST CAUSE OF ACTION (Contractual Indemnity against NY Supermarket) 30. AGLIC repeats and reiterates each and every allegation set forth in Paragraphs 1 through 29 with the same force and effect as though fully set forth herein. 31. As set forth above, pursuant to the terms of the NY Supermarket Sublease and the Court's April 27, 2015 summary judgment ruling in the Underlying Action, NY Supermarket is required to provide Winking with full contractual indemnity with respect to any liability arising from the Claimant's alleged injuries. 32. By virtue of its contribution towards settlement and pursuant to Section VI.15. of the AGLIC Policy noted above, AGLIC became subrogated to any claims Winking had or may have had against any third parties in connection with the Underlying Action. 33. THEREFORE, NY Supermarket is required to reimburse AGLIC for the $100,000 AGLIC paid towards settlement of the Underlying Action, plus applicable interest, pursuant to NY Supermarket's contractual-indemnity obligations set forth in the NY Supermarket Sublease. 10 of 13

11 SECOND CAUSE OF ACTION (Breach of Contract against NY Supermarket) 34. AGLIC repeats and reiterates each and every allegation set forth in Paragraphs 1 through 33 with the same force and effect as though fully set forth herein. 35. Pursuant to Section 9.(C) of the NY Supermarket Sublease, NY Supermarket agreed to procure commercial general liability insurance coverage naming Winking as an insured thereunder with limits not less than $3 million per occurrence and $5 million in the aggregate. 36. In the Coverage Action, National Union has taken the position that it is not required to provide coverage to Winking under the National Union Policy unless and until the Burlington Policy and/or the AGLIC Umbrella Policy have been exhausted, or that its coverage should be held to be co-excess with that of AGLIC. 37. To the extent that the National Union Policy is determined to be excess to and/or co-excess with the AGLIC Umbrella Policy, NY Supermarket breached the terms of the NY Supermarket Sublease with respect to its obligations to procure insurance on behalf of Winking. 38. THEREFORE, AGLIC, as subrogee of Winking, is entitled to damages for NY Supermarket's breach of its duty to procure adequate insurance coverage. WHEREFORE, AGLIC demands judgment in its favor: 1. Holding that NY Supermarket is required to fully reimburse AGLIC, as subrogee of Winking, for AGLIC's $100,000 contribution towards settlement of the Underlying Action, plus applicable interest, pursuant to NY Supermarket's contractual-indemnity obligations set forth in the NY Supermarket Sublease; 11 of 13

12 2. Holding that NY Supermarket is liable to AGLIC, as subrogee of Winking, for NY Supermarket's breach of its obligations under the NY Supermarket Sublease to procure insurance on behalf of Winking; and 3. Awarding AGLIC costs and disbursements of this action and such other relief as the Court deems just and proper. Dated: New York, New York November 20, 2017 COUGHLIN DUFFY LLP By: /s/ Steven G. Adams Steven G. Adams Patrick K. Coughlin Wall Street Plaza, 28th FlOOr 88 Pine Street New York, New York (212) Attorneys for Third-Party Defendant/ Second Third-Party Plaintiff American Guarantee and Liability Insurance Company To: New York Supermarket East Broadway, Inc. c/o Michael E. Pressman, Esq. Law Offices of Michael E. Pressman 125 Maiden Lane New York, New York (212) Law Offices of Michael Pressman 125 Maiden Lane New York, New York (212) Attorneys for Defendants Kookmin Best Insurance Co., Ltd. (US Branch) (f/k/a LIG Insurance Co., Ltd.), and New York Supermarkets East Broadway, Inc. 12 of 13

13 Robert P. Pagano, Esq. Steinberg & Cavaliere, LLP 50 Main Street White Plains, New York Attorneys for Defendant/Third-Party Plaintiff National Union Fire Insurance Company Adrian-Cassidy & Associates, LLC 200 Park Avenue, Suite 1700 New York, New York (646) Attorneys for Plaintiff The Burlington Insurance Company 13 of 13