FILED: KINGS COUNTY CLERK 10/27/2017 03:49 PM
`FILED: KINGS COUNTY CLERK 10m2017 03:49 PM
`NYSC 3F DOC. NO. 53
`NYSCEF DOC. NO. 53
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`IND
`EX NO.
`513663/2015
`INDEX NO. 513663/2015
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` VYSC
`
` fiD
` 3F:
`
`
`10/27/2017
`RECEIVED NYSCEF: 10/27/2017
`
`Exhibit B
`
`

`

`FILED: KINGS COUNTY CLERK 10/27/2017 03:49 PM
`FILED: KINGS COUNTY CLERK 10m2017 03:49 PM
`
`NYSCEF DOC. NO. 53
`NYSCEF DOC. NO. 53
`
`513663/2015
`INDEX NO. 513663/2015
`INDEX NO.
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`
`
`
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`RECEIVED NYSCEF: 10/27/2017
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`19/27/2017
`R*-C*-IV*-D \IY\5C
`
`
`
`
`August 17, 2017
`
`York Risk Services
`
`Group, Inc.
`PO. Box 183188
`
`Columbus, OH
`4321 8-3 1 88
`
`
`
`
`
`
`
`
`SEN? CERTEFEE} MAEL/ RE'E‘ERN RECEEPT REE EUES’EEB AND REGEEAR
`MAKE
`
`Malapero & Frisco LLP
`185 Madison Ave, 4th Floor
`New York, NY 10016
`Attention: Andrew L. Klauber
`
`Insured:
`Plaintiff:
`Dates of Loss:
`Claim Number:
`
`Apple-Metro inc.
`Gocha Chiglaze
`August 24-, 2015
`APPN—0249Al
`
`/Sheepshead Apple, LLC
`
`Policy Number:
`Effective Dates:
`
`lCC-CL—0010271-4
`1/1/15 to 1/1/16
`
`Your Client:
`Your File Number:
`
`Pier Associates
`82-740
`
`
`
`Goeha Chigladze v. Pier Associates and Sheepshead Apple, LEE, ENS/A Applebee’s
`
`Supreme Court of the State of New York, County of Kings index No. 513663/2015
`
`
`
`Dear Mr. Klauber:
`
`York Risk Services Group, Inc. (“York”) is the claims administrator for Nova Casualty
`Company (“Nova”) which provides Commercial General Liability Insurance to Apple-
`Metro lnc./ Sheepshead Apple LLC, under policy number lCC-CL—0010271—4, effective
`from January 1, 2015 to January 1,2016. We acknowledge receipt of your tender letter
`for defense and indemnification of Pier Associates, to Apple—Metro lnc., Sheepshead
`Apple LLC in this matter. For the reasons outlined below, Nova Will accept your tender
`of defense and indemnification on behalf of Pier Associates.
`
`

`

`FILED: KINGS COUNTY CLERK 10/27/2017 03:49 PM
`FILED: KINGS COUNTY CLERK 10m2017 03:49 PM
`
`SE DOC. NO. 53
`NYSCI
`NYSCEF DOC. NO. 53
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`513663/2015
`INDEX NO. 513663/2015
`INDEX NO.
`
`
`
`
`
`RfiCfiIVfiD VYSCEF:
`10/27/2017
`RECEIVED NYSCEF: 10/27/2017
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`Prior to discussing the relevant policy provisions and coverage issues, we summarize
`below the allegations of the complaint. Our summary of the allegations in no way implies
`that Nova believes that the allegations asserted by the claimants are true or deserve merit.
`
`The Complaint/Allegations
`
`The Complaint alleges that the plaintiff, Gocha Chigladze, was a lawful pedestrian on the
`sidewalk at the Applebee’s restaurant located at 2505 Emmons Avenue, Brooklyn, New
`York on August 21, 2015 and was injured when he was caused to trip and fall and sustain
`severe and permanent injuries.
`
`Mr. Chigladze alleges that the loss was caused by the negligence of the defendants
`and/or said defendant’s servants, agents, employee and/or licensses in the ownership,
`operation, inspection, repair supervision, management, maintenance and control of the
`aforesaid sidewalk.
`
`r
`
`
`the insurance Pelicy
`
`We discuss below certain provisions of the Nova policy. Please note, however, that our
`discussion involves only a partial recitation of the terms, conditions, limitations and
`exclusions contained in the Nova policy. It is not intended to supplement, amend,
`supersede or otherwise alter the Nova policy. Nova does not intend to waive any
`provisions of the Nova policy by virtue of its discussion. Please consult your copy of the
`Nova policy for a complete listing of all the terms, conditions, limitations and exclusions
`contained therein.
`
`Please refer to your Commercial General Liability insurance Form, CGOOOl (04—13),
`which is Amended by Endorsement Form Number CG0163 (0741) reads in part as
`follows:
`
`
`
`This endorsement modifies insurance provided under the following:
`
`COMMERCIAL GENERAL LIABILITY COVERAGE PART
`
`A. Paragraph La. of §eetion E -— Coverage A. - Eedily injury and Property fiamage
`Liability is replaced by the following:
`
`

`

`FILED: KINGS COUNTY CLERK 10/27/2017 03:49 PM
`FILED: KINGS COUNTY CLERK 10m2017 03:49 PM
`
`NYSCEF DOC. NO. 53
`NYSCEF DOC. NO. 53
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`513663/2015
`INDEX NO. 513663/2015
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`INDEX NO~
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`
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`R«C«IV«D vYSCEF:
`10/27/2017
`RECEIVED NYSCEF: 10/27/2017
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`1. Ensuring Agreement
`a. We will pay those sums that the insured becomes legally obligated to ay as
`damages because of "bodily injury” or "property damage" to whic
`this
`insurance applies. We will have the right and duty to defend the insured against
`any "suit" seeking those damages even if the allegations of the "suit" are
`groundless, false or fraudulent. However, we will have no duty to defend the
`insured against any ”suit" seeking damages for "bodily injury" or "property
`damage" to which this insurance does not apply. We may, at our discretion,
`
`investigate any ”occurrence" and settle any claim or "suit" that may result. But:
`
`
`
`(i) The amount we will pay for damages is limited as described in Section E i ~
`Limits Of Insurance; and
`
`(2) Our right and duty to defend end when we have used up the applicable limit
`of insurance in the payment of judgments or settlements under Coverages A
`or B or medical expenses under Coverage C.
`No other obligation or liability to pay sums or perform acts or services is
`covered unless explicitly provided
`or under Supplementary Payments —
`Coverages A and B.
`
`This insurance applies to "bodily injury” and "property damage" only if:
`(i The ”bodily injury" or "property damage” is caused by an "occurrence" that
`ta es place in the "coverage territory”;
`{2)d The "bodily injury” or "property damage" occurs during the policy period;
`an
`
`(3) Prior to the policy period, no insured listed under Paragraph ll. of Section ii
`— Who is An Insured and no "employee” authorized by you to give or receive
`notice of an "occurrence" or claim, knew that the "bodily injury” or "property
`damage" had occurred, in whole or in part. if such a listed insured or authorized
`"employee" knew, prior to the policy period,
`that
`the "bodily injury" or
`"property damage" occurred, then any continuation, change or resumption of
`such "bodily injury" or " ropeity damage" during or after the policy period will
`be deemed to have been Ignown prior to the policy period.
`
`Paragraph La. of Section E —— Coverage B — Personal And Advertising injury
`Liability is replaced by the following:
`
`Ensuring Agreement
`a. We will pay those sums that the insured becomes legally obligated to pay
`as damages because of " ersonal and advertising injury" to which this
`insurance applies. We willl3 have the right and duty to defend the insured
`against any "suit" seeking those damages even if the allegations of the
`"suit" are groundless, false or fraudulent. However, we will have no duty
`to defend the insured against any "suit" seeking damages for "personal and
`advertising injury" to which this insurance does not apply. We may, at our
`discretion, investigate any offense and settle any claim or "suit" that may
`result. But:
`
`(1:) The amount we will pay for damages is limited as described in Section
`ill — Limits Of Insurance; and
`(2) Our right and duty to defend end when we have used up the applicable
`limit of insurance in the payment ofjudgments or settlements under
`Coverages A and B or medical expenses under Coverage C.
`
`

`

`FILED: KINGS COUNTY CLERK 10/27/2017 03:49 PM
`FILED: KINGS COUNTY CLERK 10m2017 03:49 PM
`
`NYSCEF DOC. NO. 53
`NYSCEF DOC. NO. 53
`
`513663/2015
`INDEX NO. 513663/2015
`
`INDEX NO~
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`
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`R«C«IV«D VYSCEF:
`10/27/2017
`RECEIVED NYSCEF: 10/27/2017
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`to pa sums or perform acts or services is covered
`No other obligation or liabilit
`unless expliCitly prov1ded or un er Supplementary Payments — Coverages A
`and B.
`
`h. This insurance applies to "personal and advertising injury” caused by an offense
`arising out of your business but only if the offense was committed in the
`"coverage territory” during the policy period.
`
`
`
`SE€TEQN V — BEFENETEQNS
`
`12. "Advertisement” means a notice that is broadcast or published to the general public or
`specrfic market segments about your goods, products or serVices for the purpose of
`attracting customers or supporters. For the purposes of this definition:
`a. Notices that are published include material placed on the Internet or on similar
`electronic
`
`means of communication; and
`b. Regarding websites, only that part of a web—site that is about your goods,
`products or serVices
`
`for the purposes of attracting customers or supporters is considered an
`advertisement.
`
`3.
`
`13.
`
`"Bodily injury” means bodily injury, sickness or disease sustained by a person,
`including death resulting from any of these at any time.
`"Occurrence" means an accident,
`including. continuous or repeated exposure to
`substantially the same general harmful conditions.
`17. "Property damage" means:
`a. Physical injury to tangible property, including all resulting loss of use of that
`property. All such loss
`of use shall be deemed to occur at the time of the
`physical injury that caused it; or
`b. Loss of use of tangible property that is not physically injured. All such loss of
`use shall be deeme to occur at the time of the “occurrence” that caused it.
`"Suit" means a civil proceeding in which damages because of ”bodily injury",
`"property
`damage” or ”personal and advertising injury" to which this insurance
`applies are alleged. ”Suit" includes:
`a. An arbitration i‘oceeding in which such damages are claimed and to which the
`insured must su mit or does submit With our consent; or
`b. Any other alternative dispute resolution proceeding in which such damages are
`claimed and to which the insured submits With our consent.
`
`18.
`
`Next, please note that the policy contains Endorsement, AGL01350408, entitled,
`
`GENERAL LEABELE'E‘? EXTRA ENDGRSEMENT, which reads in part as follows:
`
`h. MANAGERS GR LESSORS @E PREMESES
`
`i.
`
`SECTEQN EE— WHQ E§ AN ENSUREE is amended to include as an additional
`insured any person or organization from whom you lease when you and such
`person or organization have agreed in writing in a contract or agreement that
`
`

`

`FILED: KINGS COUNTY CLERK 10/27/2017 03:49 PM
`FILED: KINGS COUNTY CLERK 10m2017 03:49 PM
`
`NYSC3F DOC. NO. 53
`NYSCEF DOC. NO. 53
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`513663/2015
`INDEX NO. 513663/2015
`INDEX NO.
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`
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`RfiCfiIVfiD VYSCEF:
`10/27/2017
`RECEIVED NYSCEF: 10/27/2017
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`such person or organization be added as an additional insured on your policy.
`Such person or organization is an insured only with respect to liability arising
`out of your ownership, maintenance or use of that part of the premises leased to
`you subject to the following additional exclusion:
`With respect to the insurance afforded these additional insureds, the following
`additional exclusions apply:
`
`ii.
`
`This insurance does not apply:
`1. Any “occurrence” which takes place after you cease to be a tenant in that
`premises.
`2. Structural alteration, new construction or demolition operations performed
`by or on behalf of such person or organization.
`
`
`The lease Agreement
`
`Further, we note from a review of the lease agreement between Pier Associates,
`as landlord and Sheepshead Apple LLC, as tenant. Article 19 - INSURANCE, 19.1 it
`states; Tenant, at its cost, shall maintain commercial general liability insurance including
`contractual liability and products liability coverage, with a minimum combined single
`limit of coverage liability of Three Million Dollars ($3,000,000.00), insuring against all
`liability of Tenant and its authorized representatives arising out of or in connection with
`Tenant’s use or in connection with Tenant’s use of occupancy of the Premises (including,
`but not limited to , any liability for death, bodily injury, personal injury or property
`damage). Such insurance shall name Landlord as an additional insured, shall specifically
`include the liability assumed hereunder by Tenant (provide, however, that the amount of
`such insurance shall not be construed to limit the liability of Tenant hereunder), ad shall
`provide that
`it is primary insurance and not “excess over” or contributory with any other
`valid, existing and applicable insurance in force for or on behalf of Landlord.
`
`"Eire insurance Company’s Position
`
`In order for coverage to potentially apply under the Nova policy, the allegations must set
`forth claims for “bodily injury” or “property damage” during the policy period caused by
`an “occurrence”, during the policy period (Coverage A) or for “personal and advertising
`injury” caused by an enumerated offense committed during the policy period (Coverage
`B). Please be advised that the allegations in the Complaint do not state a claim for
`“personal and advertising injury” caused by an enumerated offense committed during the
`policy period. Accordingly, those coverage are not applicable, and will not be discussed.
`
`A review of the lease agreement between Pier Associates, (as landlord) and Sheepshead
`Apple LLC (as tenant) and the above additional insured endorsement, quoted above,
`reveals that Pier Associates does qualify as an additional insured under the above policy.
`
`

`

`FILED: KINGS COUNTY CLERK 10/27/2017 03:49 PM
`FILED: KINGS COUNTY CLERK 10m2017 03:49 PM
`
`NYSCEF DOC. NO. 53
`NYSCEF DOC. NO. 53
`
`513663/2015
`INDEX NO. 513663/2015
`INDEX NO.
`
`
`
`
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`RaCaIVaD VYSCEF: 10/27/2017
`RECEIVED NYSCEF: 10/27/2017
`
`Based on the foregoing, Nova will provide a defense and indemnification to Pier
`Associates, under policy number, ICC—CL~0010271-4, effective from January 1, 2015 to
`January 1, 2016. Accordingly, we request that you contact Stephanie L. Goldstein of
`Pillinger, Miller Tarallo, LLP, and arrange for substitution of counsel in this matter.
`l
`have copied Ms. Goldstein on this letter, she can be reached at 914—703-6300 and her
`mailing address is 555 Taxter Road, 5th Floor, Elmsford, NY 10523.
`
`Nova’s coverage position is based on the information presently available to us. This
`letter is not, and should not be construed as, a waiver of any terms, conditions, exclusions
`or other provisions of the Nova, or any other policies of insurance issued by Nova or any
`of its affiliates. Nova expressly reserves all rights under the Nova Policy, including the
`right to assert additional defenses to any claims for coverage, if subsequent information
`indicates that such action is warranted.
`
`Sincerely,
`
`Nora Cretter
`
`Sr. Claims Adjuster
`516-2146205
`
`CC.
`
`Innovative Coverage Concepts (ICC)
`8 Wood Hollow Road
`
`Parsippany, NJ 07054
`Attention: Susan Kruger
`
`Pillinger Miller Tarallo, LLP
`570 Taxter Road, Suite 275
`Elmsford, NY 10523
`Attention: Stephanie L. Goldstein
`
`