Preview
FILED: NEW YORK COUNTY CLERK 06/15/2021 01:30 AM INDEX NO. 652336/2018
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/15/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ZURICH AMERICAN INSURANCE COMPANY, :
Plaintiff, : Index No. 652336/2018
-against- : IAS Part 59
Hon. Debra James
FIRST SPECIALTY INSURANCE CORPORATION, :
WESTERN BEEF RETAIL, INC. and WESTERN
BEEF PROPERTIES, INC., :
Defendants. :
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STATEMENT OF MATERIAL FACTS IN SUPPORT OF
WESTERN BEEF’S CROSS-MOTION FOR SUMMARY JUDGMENT
Pursuant to NYCRR 202.70.19-a, Defendants Western Beef Retail, Inc. and Western Beef
Properties, Inc. (“Western Beef”) submit the following materials facts as to which Western Beef
contends there is no genuine issue to be tried in support of their cross-motion for summary
judgment to dismiss the claims of plaintiff Zurich American Insurance Company.
1. Non-party Serota Roosevelt, LLC (“Serota”) operates a multi-store shopping center
at 306-332 Nassau Road, Roosevelt, New York 11575. A portion of the premises, including the
entire parking area and a portion of the sidewalk at the shopping center, is leased by Serota from
the Town of Hempstead. (See Zurich Ex. 30, Serota EBT by Michael Cassidy at p.21.)
2. The shopping center contains an L-shaped retail rental building which contains
between twelve to fourteen retail stores. (See Zurich Ex. 30, Serota EBT by Michael Cassidy at
p.21.)
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3. Western Beef is not an insurance company, but is the owner and operator of the
supermarket in the Serota Roosevelt shopping center. (See Zurich Ex. 30, Serota EBT by Michael
Cassidy at p.21.)
4. Pursuant to an August 3, 2004 lease between Serota and Western Beef, Western
Beef leased a 25,400 rentable square feet portion of a building located at 322 Nassau Road,
Roosevelt, New York 11575. Per the terms of the lease, the Demised Premises included solely
its portion of the building located and did not include any sidewalks or other appurtenances. (See
Zurich Ex. 1, Lease between Serota and Western Beef at p. 2 of 37.)
5. The lease between the parties obligated Western Beef to indemnify Serota from
“any and all liabilities, damages, expenses, actions, claims or judgments …. arising from injury to
any person or persons or property which may occur in the Demised premises, or any part thereof,
whether or not due to the Tenant’s negligence or willful misconduct, from any matter or thing
which is connected to or related to the Tenant’s acts or use or occupancy of the Demised Premises.”
(See Zurich Ex. 1, Lease between Serota and Western Beef, ¶ 60.)
6. The lease also obligated Western Beef to procure comprehensive general liability
insurance, naming Serota as an additional insured and indemnifying Serota “against any and all
claims and liabilities for injury or damage to person or property or for the loss of life or of property
occurring upon, in or about the Demised Premises as well as the sidewalks adjacent thereto ….”
(See Zurich Ex. 1, Rider to the Lease between Serota and Western Beef, ¶ 50.)
7. Western Beef obtained a general liability policy with First Specialty Insurance
Company with an effective date of November 14, 2014 to November 15, 2015 and bearing Policy
No. “IRA 20000002 02” (the “First Specialty Policy”). (See Zurich Ex. 2, First Specialty Policy.)
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8. The Additional Insured Endorsement defined the “part of the premises” leased to
Western Beef as:
1. Designation of Premises (Part Leased to You):
As per written contract. [i.e., the store]
(See Zurich Ex. 2 at p. 59 of 80, First Specialty Policy.)
9. The First Specialty Policy contained an Additional Insured Endorsement which
modified “Who is an Insured” under the policy and provided additional insured general liability
coverage for Serota, as lessor, but only with respect to:
WHO IS AN INSURED (Section II) is amended to include
as an insured the person or organization shown in the
Schedule but only with respect to liability arising out of the
ownership, maintenance or use of that part of the premises
leased to you . . . . [i.e., the store] (emphasis added)
(See Zurich Ex. 2 at p. 59 of 80, the First Specialty Policy.)
10. In August 2015, as alleged in his Complaint, Garrett alleged that he tripped and fell
on a defective sidewalk at the Serota Roosevelt shopping center. (See Zurich Ex. 4, Garrett
Complaint.)
11. Garrett explained that he deviated from his path to the Western Beef store when he
saw a friend who was the shopping center security guard. He had turned and walked toward the
guard and extended his hand to shake the guard’s hand when he stumbled. (See Kretz Aff., Ex. A,
Desmond Garrett EBT at pp. 115-118.)
12. The sidewalk defect on which Garrett allegedly tripped and fell was not in the
entranceway (or part of the ingress or egress) to the Western Beef store, but was situated in an area
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commonly used by all patrons of the mall, including the nearby laundromat and postal store. (See
Kretz Aff., Ex. B, photos of the location of the Garrett injury; Zurich Ex. 31 at pp. 9-10 of 12, the
Garrett trial transcript of the Court findings.)
13. Pursuant to the lease between Serota and Western Beef, Serota was obligated to
make structural repairs to the sidewalk. (See Zurich Ex. 1, the Serota-Western Beef Lease, ¶4; See
Zurich Ex. 30, Serota EBT by Michael Cassidy at pp. 24-25; Zurich Ex. 31 at p. 6 of 10, the Garrett
trial transcript of the Court’s findings.)
14. In March 2016, Garrett sued Serota and Western Beef and asserted that Serota and
Western Beef were negligent for, inter alia, “creating a hazardous condition” and by “permitting
and/or allowing an uneven sidewalk crack to exist.” (See Zurich Ex. 4, the Garrett Summons and
Complaint.)
15. Upon notification of the Garrett claim and again upon receipt of the Garrett
Summons and Complaint, Serota notified its general liability carrier, Zurich American Insurance
Company, of the claim and the lawsuit pursuant to the policy of insurance issued by Zurich bearing
Policy No. “GLO 9242799-03” (the “Zurich Policy”). (See Zurich Ex. 3, the Zurich Policy; Zurich
Ex. 30, Serota EBT by Michael Cassidy, pp. 57-58; and Zurich Ex. 10 at ZURICH000371-72,
Zurich Claim Notes).
16. Serota never notified Western Beef or its insurer, First Specialty, that Serota was
seeking additional insured coverage under the First Specialty Policy. (See Zurich Ex. 30, Serota
EBT by Michael Cassidy, at pp. 59-61.)
17. Neither Zurich, nor counsel retained by Zurich to represent Serota, Conway &
Goren, notified Western Beef or its insurer, First Specialty, that Serota was seeking additional
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insured coverage under the First Specialty Policy. (See Zurich Ex. 29, Zurich EBT by Aaron
Gibson, pp. 92-97.)
18. After receipt from Serota of the Garrett Summons and Complaint, Zurich
discovered that an attorney retained by Western Beef, Robert A. Brown and Associates, had filed
an Answer to the Garrett Complaint on behalf of both Western Beef and Serota. (See Zurich Ex.
29, Zurich EBT by Aaron Gibson, pp. 92-97.)
19. On that basis alone, Zurich, and the attorneys retained by Zurich to represent Serota,
closed their file. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 92-97.)
20. Zurich never tendered any purported defense and indemnity obligation for Serota
as an Additional Insured under the First Specialty Policy to either First Specialty or Western Beef.
(See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 92-93.)
21. Zurich never confirmed whether Western Beef or First Specialty had agreed to
defend and indemnify Serota as an Additional Insured under the First Specialty Policy. (See Zurich
Ex. 29, Zurich EBT by Aaron Gibson, pp. 92-97.)
22. Rather, Zurich merely assumed that Serota was being defended and indemnified by
Western Beef, a non-insurer, as an Additional Insured under the First Specialty Policy. (See Zurich
Ex. 29, Zurich EBT by Aaron Gibson, p. 44, pp. 92-97.)
23. Based on this assumption, the attorneys retained by Zurich to represent Serota and
Zurich’s claims adjuster, Aaron Gibson, assigned to handle Serota’s insurance claim for the Garrett
lawsuit, both closed their files. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson at pp. 122-124;
and Zurich Ex. 10 at ZURICH000416, Zurich Claim Notes.)
24. Mr. Gibson did not review the lease between Serota and Western Beef, did not
review the First Specialty Policy and did not otherwise investigate whether Serota qualified as an
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Additional Insured under the First Specialty Policy. (See Zurich Ex. 29, Zurich EBT by Aaron
Gibson, pp. 87-97)
25. Mr. Gibson acknowledged that Western Beef, a non-insurer, may have answered
the Garrett Complaint for reasons unrelated to Serota’s purported Additional Insured status under
the First Specialty Policy, including that a contract may require one entity to provide a defense for
another entity. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 34-41.)
26. Mr. Gibson requested that the attorneys retained by Zurich to represent Serota find
out from Western Beef whether it had decided to indemnify Serota and, if so, to get confirmation
from Western Beef in writing. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, p. 34; Kretz
Aff. Ex. C at ZURICH000418, Zurich Claim Notes.)
27. The attorneys never did so, and simply closed their file. (See Zurich Ex. 29, Zurich
EBT by Aaron Gibson at p.124.)
28. Mr. Gibson simply closed his file as well. In a claim note, Mr. Gibson wrote that
“I too, will proceed to close my file as it appears that our insured will be defended and indemnified
by the Tenant.” (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 44, 124)
29. At his deposition, however, Mr. Gibson acknowledged that his assumption that
Western Beef had decided to indemnify Serota as an Additional Insured under the First Specialty
Policy was a mistake. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 44-45; 87-88; 90-
91.)
30. Western Beef was never advised that Serota was seeking Additional Insured
coverage under the First Specialty Policy. At all times, Western Beef was defending Serota on the
belief of its attorney that the lease between the parties required Western Beef to defend Serota
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pending further developments. (See Zurich Ex. 7, Benjamin Petrofsky EBT at pp. 30-31; Zurich
Ex. 6, Robert Brown EBT at p. 32.)
31. Prior to trial, Western Beef’s newly appointed defense counsel, advised Serota that
it would no longer pay for Serota’s defense in the Garrett lawsuit. (See Zurich Ex. 8, Sandra Lohay
EBT at pp. 104-105.)
32. Serota contacted Zurich, who agreed to pay for Serota’s defense in the Garrett
lawsuit and which retained Robert Brown to continue to represent Serota. Zurich fully indemnified
Serota for its liability in the Garrett lawsuit. (See Zurich Ex. 32, Affidavit of Aaron Gibson ¶¶ 3-
4.)
Dated: New York, New York
June 14, 2021
NICOLETTI HORNIG &
SWEENEY
______________________
Walter A. Kretz, Jr.
Patrick C. Nolan
Wall Street Plaza
88 Pine St., 7th Floor
New York, NY 10005
Tel: (212) 220-3841, 3820
Attorneys for Defendants Western
Beef Retail, Inc. and Western Beef
Properties, Inc.
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Preview
FILED: NEW YORK COUNTY CLERK 06/15/2021 01:30 AM INDEX NO. 652336/2018 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/15/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X ZURICH AMERICAN INSURANCE COMPANY, : Plaintiff, : Index No. 652336/2018 -against- : IAS Part 59 Hon. Debra James FIRST SPECIALTY INSURANCE CORPORATION, : WESTERN BEEF RETAIL, INC. and WESTERN BEEF PROPERTIES, INC., : Defendants. : -----------------------------------------------------------------------X STATEMENT OF MATERIAL FACTS IN SUPPORT OF WESTERN BEEF’S CROSS-MOTION FOR SUMMARY JUDGMENT Pursuant to NYCRR 202.70.19-a, Defendants Western Beef Retail, Inc. and Western Beef Properties, Inc. (“Western Beef”) submit the following materials facts as to which Western Beef contends there is no genuine issue to be tried in support of their cross-motion for summary judgment to dismiss the claims of plaintiff Zurich American Insurance Company. 1. Non-party Serota Roosevelt, LLC (“Serota”) operates a multi-store shopping center at 306-332 Nassau Road, Roosevelt, New York 11575. A portion of the premises, including the entire parking area and a portion of the sidewalk at the shopping center, is leased by Serota from the Town of Hempstead. (See Zurich Ex. 30, Serota EBT by Michael Cassidy at p.21.) 2. The shopping center contains an L-shaped retail rental building which contains between twelve to fourteen retail stores. (See Zurich Ex. 30, Serota EBT by Michael Cassidy at p.21.) 1 of 7 FILED: NEW YORK COUNTY CLERK 06/15/2021 01:30 AM INDEX NO. 652336/2018 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/15/2021 3. Western Beef is not an insurance company, but is the owner and operator of the supermarket in the Serota Roosevelt shopping center. (See Zurich Ex. 30, Serota EBT by Michael Cassidy at p.21.) 4. Pursuant to an August 3, 2004 lease between Serota and Western Beef, Western Beef leased a 25,400 rentable square feet portion of a building located at 322 Nassau Road, Roosevelt, New York 11575. Per the terms of the lease, the Demised Premises included solely its portion of the building located and did not include any sidewalks or other appurtenances. (See Zurich Ex. 1, Lease between Serota and Western Beef at p. 2 of 37.) 5. The lease between the parties obligated Western Beef to indemnify Serota from “any and all liabilities, damages, expenses, actions, claims or judgments …. arising from injury to any person or persons or property which may occur in the Demised premises, or any part thereof, whether or not due to the Tenant’s negligence or willful misconduct, from any matter or thing which is connected to or related to the Tenant’s acts or use or occupancy of the Demised Premises.” (See Zurich Ex. 1, Lease between Serota and Western Beef, ¶ 60.) 6. The lease also obligated Western Beef to procure comprehensive general liability insurance, naming Serota as an additional insured and indemnifying Serota “against any and all claims and liabilities for injury or damage to person or property or for the loss of life or of property occurring upon, in or about the Demised Premises as well as the sidewalks adjacent thereto ….” (See Zurich Ex. 1, Rider to the Lease between Serota and Western Beef, ¶ 50.) 7. Western Beef obtained a general liability policy with First Specialty Insurance Company with an effective date of November 14, 2014 to November 15, 2015 and bearing Policy No. “IRA 20000002 02” (the “First Specialty Policy”). (See Zurich Ex. 2, First Specialty Policy.) 2 2 of 7 FILED: NEW YORK COUNTY CLERK 06/15/2021 01:30 AM INDEX NO. 652336/2018 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/15/2021 8. The Additional Insured Endorsement defined the “part of the premises” leased to Western Beef as: 1. Designation of Premises (Part Leased to You): As per written contract. [i.e., the store] (See Zurich Ex. 2 at p. 59 of 80, First Specialty Policy.) 9. The First Specialty Policy contained an Additional Insured Endorsement which modified “Who is an Insured” under the policy and provided additional insured general liability coverage for Serota, as lessor, but only with respect to: WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you . . . . [i.e., the store] (emphasis added) (See Zurich Ex. 2 at p. 59 of 80, the First Specialty Policy.) 10. In August 2015, as alleged in his Complaint, Garrett alleged that he tripped and fell on a defective sidewalk at the Serota Roosevelt shopping center. (See Zurich Ex. 4, Garrett Complaint.) 11. Garrett explained that he deviated from his path to the Western Beef store when he saw a friend who was the shopping center security guard. He had turned and walked toward the guard and extended his hand to shake the guard’s hand when he stumbled. (See Kretz Aff., Ex. A, Desmond Garrett EBT at pp. 115-118.) 12. The sidewalk defect on which Garrett allegedly tripped and fell was not in the entranceway (or part of the ingress or egress) to the Western Beef store, but was situated in an area 3 3 of 7 FILED: NEW YORK COUNTY CLERK 06/15/2021 01:30 AM INDEX NO. 652336/2018 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/15/2021 commonly used by all patrons of the mall, including the nearby laundromat and postal store. (See Kretz Aff., Ex. B, photos of the location of the Garrett injury; Zurich Ex. 31 at pp. 9-10 of 12, the Garrett trial transcript of the Court findings.) 13. Pursuant to the lease between Serota and Western Beef, Serota was obligated to make structural repairs to the sidewalk. (See Zurich Ex. 1, the Serota-Western Beef Lease, ¶4; See Zurich Ex. 30, Serota EBT by Michael Cassidy at pp. 24-25; Zurich Ex. 31 at p. 6 of 10, the Garrett trial transcript of the Court’s findings.) 14. In March 2016, Garrett sued Serota and Western Beef and asserted that Serota and Western Beef were negligent for, inter alia, “creating a hazardous condition” and by “permitting and/or allowing an uneven sidewalk crack to exist.” (See Zurich Ex. 4, the Garrett Summons and Complaint.) 15. Upon notification of the Garrett claim and again upon receipt of the Garrett Summons and Complaint, Serota notified its general liability carrier, Zurich American Insurance Company, of the claim and the lawsuit pursuant to the policy of insurance issued by Zurich bearing Policy No. “GLO 9242799-03” (the “Zurich Policy”). (See Zurich Ex. 3, the Zurich Policy; Zurich Ex. 30, Serota EBT by Michael Cassidy, pp. 57-58; and Zurich Ex. 10 at ZURICH000371-72, Zurich Claim Notes). 16. Serota never notified Western Beef or its insurer, First Specialty, that Serota was seeking additional insured coverage under the First Specialty Policy. (See Zurich Ex. 30, Serota EBT by Michael Cassidy, at pp. 59-61.) 17. Neither Zurich, nor counsel retained by Zurich to represent Serota, Conway & Goren, notified Western Beef or its insurer, First Specialty, that Serota was seeking additional 4 4 of 7 FILED: NEW YORK COUNTY CLERK 06/15/2021 01:30 AM INDEX NO. 652336/2018 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/15/2021 insured coverage under the First Specialty Policy. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 92-97.) 18. After receipt from Serota of the Garrett Summons and Complaint, Zurich discovered that an attorney retained by Western Beef, Robert A. Brown and Associates, had filed an Answer to the Garrett Complaint on behalf of both Western Beef and Serota. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 92-97.) 19. On that basis alone, Zurich, and the attorneys retained by Zurich to represent Serota, closed their file. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 92-97.) 20. Zurich never tendered any purported defense and indemnity obligation for Serota as an Additional Insured under the First Specialty Policy to either First Specialty or Western Beef. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 92-93.) 21. Zurich never confirmed whether Western Beef or First Specialty had agreed to defend and indemnify Serota as an Additional Insured under the First Specialty Policy. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 92-97.) 22. Rather, Zurich merely assumed that Serota was being defended and indemnified by Western Beef, a non-insurer, as an Additional Insured under the First Specialty Policy. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, p. 44, pp. 92-97.) 23. Based on this assumption, the attorneys retained by Zurich to represent Serota and Zurich’s claims adjuster, Aaron Gibson, assigned to handle Serota’s insurance claim for the Garrett lawsuit, both closed their files. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson at pp. 122-124; and Zurich Ex. 10 at ZURICH000416, Zurich Claim Notes.) 24. Mr. Gibson did not review the lease between Serota and Western Beef, did not review the First Specialty Policy and did not otherwise investigate whether Serota qualified as an 5 5 of 7 FILED: NEW YORK COUNTY CLERK 06/15/2021 01:30 AM INDEX NO. 652336/2018 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/15/2021 Additional Insured under the First Specialty Policy. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 87-97) 25. Mr. Gibson acknowledged that Western Beef, a non-insurer, may have answered the Garrett Complaint for reasons unrelated to Serota’s purported Additional Insured status under the First Specialty Policy, including that a contract may require one entity to provide a defense for another entity. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 34-41.) 26. Mr. Gibson requested that the attorneys retained by Zurich to represent Serota find out from Western Beef whether it had decided to indemnify Serota and, if so, to get confirmation from Western Beef in writing. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, p. 34; Kretz Aff. Ex. C at ZURICH000418, Zurich Claim Notes.) 27. The attorneys never did so, and simply closed their file. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson at p.124.) 28. Mr. Gibson simply closed his file as well. In a claim note, Mr. Gibson wrote that “I too, will proceed to close my file as it appears that our insured will be defended and indemnified by the Tenant.” (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 44, 124) 29. At his deposition, however, Mr. Gibson acknowledged that his assumption that Western Beef had decided to indemnify Serota as an Additional Insured under the First Specialty Policy was a mistake. (See Zurich Ex. 29, Zurich EBT by Aaron Gibson, pp. 44-45; 87-88; 90- 91.) 30. Western Beef was never advised that Serota was seeking Additional Insured coverage under the First Specialty Policy. At all times, Western Beef was defending Serota on the belief of its attorney that the lease between the parties required Western Beef to defend Serota 6 6 of 7 FILED: NEW YORK COUNTY CLERK 06/15/2021 01:30 AM INDEX NO. 652336/2018 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/15/2021 pending further developments. (See Zurich Ex. 7, Benjamin Petrofsky EBT at pp. 30-31; Zurich Ex. 6, Robert Brown EBT at p. 32.) 31. Prior to trial, Western Beef’s newly appointed defense counsel, advised Serota that it would no longer pay for Serota’s defense in the Garrett lawsuit. (See Zurich Ex. 8, Sandra Lohay EBT at pp. 104-105.) 32. Serota contacted Zurich, who agreed to pay for Serota’s defense in the Garrett lawsuit and which retained Robert Brown to continue to represent Serota. Zurich fully indemnified Serota for its liability in the Garrett lawsuit. (See Zurich Ex. 32, Affidavit of Aaron Gibson ¶¶ 3- 4.) Dated: New York, New York June 14, 2021 NICOLETTI HORNIG & SWEENEY ______________________ Walter A. Kretz, Jr. Patrick C. Nolan Wall Street Plaza 88 Pine St., 7th Floor New York, NY 10005 Tel: (212) 220-3841, 3820 Attorneys for Defendants Western Beef Retail, Inc. and Western Beef Properties, Inc. 7 7 of 7