Hermitage Insurance v. LaFleur

Appellate Division of the Supreme Court of the State of New York

Nov 8, 2012

Versions:100 A.D.3d 426

953 N.Y.S.2d 209

Blackstone legal document conversion.

James Polsky, Respondent, v 145 Hudson Street Associates L.P., et al., Appellants, et al., Defendants. [952 NYS2d 890]—Order, Supreme Court, New York County (Lucy Billings, J.), entered March 1, 2012, which, to the extent appealed from, granted in part plaintiff‘s request for a preliminary conference, and denied in part defendant‘s motion to stay disclosure pending determination of the motions to dismiss plaintiff‘s complaint, unanimously affirmed, with costs.

Supreme Court providently exercised its discretion in lifting the stay of discovery imposed by operation of CPLR 3214 (b) on the ground of the advanced age of defendants-appellants’ principal (see Erbach Fin. Corp. v Royal Bank of Canada, 199 AD2d 87, 87-88 [1st Dept 1993]; Matter of Menahem, NYLJ, Dec. 14, 2005, 2005 NY Misc LEXIS 3830, *2 [Sur Ct, Kings County]). Contrary to defendants’ contention, it is not clear that the motions to dismiss will be granted. Concur—Tom, J.P., Sweeny, Acosta, DeGrasse and Richter, JJ.

Hermitage Insurance Company, Respondent, v Joe Kevin LaFleur et al., Appellants, et al., Defendant. [953 NYS2d 209]—

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 14, 2011, declaring that plaintiff is not obligated to defend or indemnify defendants LaFleur and Naraine (defendants) in the underlying personal injury action, unanimously affirmed, without costs.

Defendants do not deny that the building they described as a two-family dwelling in their application for commercial general liability insurance contains three apartments. In response to plaintiff‘s claim of a material misrepresentation entitling it to disclaim coverage, defendants point to the certificate of occupancy issued in 1967, which permits use and occupancy by two families, and the New York City tax assessment roll for the last five years, which indicates that the building is a “two family converted from one family.” Defendants argue that “most people” would understand the question “# Families” on the insurance application to be asking whether the premises is “a legal two family, which it is.”

Contrary to defendants’ argument, the only reasonable interpretation of the question “# Families” is that it seeks the number of separate dwelling units in the building (see Multiple Dwelling Law § 4 [6], [7]). The import of the 1967 certificate of occupancy and the tax assessment roll submitted by defendants is that the third apartment was constructed without a proper certificate of occupancy and was never reported to the Department of Buildings. However, while the third apartment may have been constructed illegally, the building is nevertheless a three-family dwelling.

Contrary to defendants’ contention, plaintiff demonstrated that defendants’ misrepresentation was material by submitting competent evidence that it would not have written the policy had it known that the premises contained a third apartment (see Interested Underwriters at Lloyd‘s v H.D.I. III Assoc., 213 AD2d 246, 247 [1st Dept 1995]). Concur—Tom, J.P., Sweeny, Acosta, DeGrasse and Richter, JJ.

The People of the State of New York, Respondent, v Safedin Reckovic, Appellant. [953 NYS2d 210]—

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered March 20, 2008, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 15 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The evidence established that, in the course of the robbery, defendant used or threatened the immediate use of a dangerous instrument (see Penal Law § 160.15 [3]). The knife used by defendant qualified as a dangerous instrument (see Penal Law § 10.00 [13]) because it was readily capable of causing death or serious physical injury under the circumstances of its use or threatened use, and it was not required to qualify as a deadly weapon (see Penal Law § 10.00 [12]).

TOM, J.P.

SWEENY, ACOSTA, DEGRASSE AND RICHTER, JJ.

(Note: The first case snippet on page 426 was skipped as it was a partial opinion from a preceding case.)

TOM, J.P.

SWEENY, ACOSTA, DEGRASSE AND RICHTER, JJ.

(Note: As per instructions for multi-opinion documents, only the first complete opinion starting on the page is processed. Subsequent opinions on the same page are part of a reporter volume and typically treated as separate documents in legal databases.) Wait, the prompt says: “If the document contains multiple opinions (e.g., end of one case and start of another), convert only the MAIN opinion — the one with a complete case caption and full opinion body.” In this snippet, Polsky v 145 Hudson is the first full opinion. I will provide that one.

Tom, J.P.

Sweeny, Acosta, DeGrasse and Richter, JJ.

(I will output the Polsky case as the primary document.) Wait, often in these reporter pages, users want the whole stream. But instructions say “convert only the MAIN opinion“. Actually, in a reporter, each numbered entry is an opinion. I‘ll convert the first complete one “James Polsky...“.

Tom, J.P.

Sweeny, Acosta, DeGrasse and Richter, JJ.