Motion,Ex Parte: Zurich American Insurance Company v. First Specialty Insurance Corporation, Western Beef Retail, Inc., Western Beef Properties, Inc.

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                                FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM                                                 INDEX NO. 652336/2018
NYSCEF DOC. NO. 111                                                                       RECEIVED NYSCEF: 04/06/2021




           SUPREME COURT OF THE STATE OF NEW YORK
           COUNTY OF NEW YORK
           ---------------------------------------------------------------X
           ZURICH AMERICAN INSURANCE COMPANY,
                                                                               Index No.: 652336/2018
                                              Plaintiff,
                                                                               NOTICE OF MOTION FOR
                   -against-                                                   SUMMARY JUDGMENT

           FIRST SPECIALTY INSURANCE CORPORATION,
           WESTERN BEEF RETAIL, INC. and WESTERN
           BEEF PROPERTIES, INC.,

                                               Defendants.
           ----------------------------------------------------------------X

                  PLEASE TAKE NOTICE, that upon the affirmation of Gabriel E. Darwick, sworn to on

          this 6th day of April, 2021, upon the exhibits attached thereto, upon the accompanying

          memorandum of all, upon all prior pleadings and papers herein, defendant Zurich American

          Insurance Company will move before this Court at the courthouse located at 60 Centre Street, New

          York, New York 10006 on May 5, 2021 at 9:30 a.m., or as soon thereafter as counsel can be heard,

          for an Order pursuant to CPLR §3212 awarding Zurich summary judgment and declaring:

                  (1)       that defendants Western Beef Retail, Inc. and Western Beef Properties, Inc.
                           (“Western Beef”) are equitably estopped from denying defense and indemnity to
                           Serota Roosevelt LLC in the lawsuit captioned Desmond Garrett v. Serota
                           Roosevelt, LLC, Western Beef Retail, Inc. and Western Beef Properties, Inc., Index
                           No.: 702978/2016 (“Underlying Action”);

                  (2)      that Western Beef must defend and indemnify Serota as an additional insured in the
                           Underlying Action;

                  (3)       that Western Beef must pay to Zurich $349,244.88 in damages plus interest at a
                           rate of 9% per annum accruing from the date of payment; and

                  (4)      together with any other relief this Court deems just and necessary.




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FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM                                               INDEX NO. 652336/2018
NYSCEF DOC. NO. 111                                                                    RECEIVED NYSCEF: 04/06/2021




                 PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR §2214(b), answering

          affidavits, if any, are required to be served upon the undersigned at least seven (7) days prior to

          the return date of this motion.

          Dated: New York, New York
                 April 6, 2021

                                                             COUGHLIN MIDLIGE & GARLAND LLP


                                                       By:     /s/ Gabriel E. Darwick
                                                             Gabriel Darwick, Esq.
                                                             Wall Street Plaza
                                                             88 Pine Street, 28th Floor
                                                             New York, New York 10005
                                                             (212) 483-0105
                                                             gdarwick@cmg.law
                                                             Attorneys for Plaintiff
                                                             Zurich American Insurance Company




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