throbber
FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`NYSCEF DOC. NO. 71
`NYSCEF DOC. NO. 71
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`
`
`INDEX NO. 150210/2017
`INDEX NO~ 150210/2017
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`RnCnIVnD NYSCEF: 10/02/2017
`RECEIVED NYSCEF: 10/02/2017
`INDEX NO. 150210/2017
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`NYSCEF DOC. NO. 70
`'1
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`J RECEIVED NYSCEF: 10/02/2017
`'
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`‘
`
`At Part 7—3 of the Supreme Court of the
`State of New York, held in and for the
`County ofrhlew York, at
`the Courthouse
`located at at: Centre Street, New York, New
`York on the Zmday ermflon.
`
`
`
`m J.5.c.
`
`2:82?”er R. 2110
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`___________________________________________________________________________x
`
`Ngfi/Q“
`V AC/
`
`TOWER INSURANCE COMPANY OF NEW YORK,
`
`Index No.: 150210/2017
`
`Plaintiff,
`
`_
`
`‘
`agams
`TYPHYNE JOHNSON and YVETTE BRANTLEY,
`
`t-
`
`ORDER TO
`SHOW CAUSE
`
`‘
`‘
`Defendants.
`........................................................................... x
`
`TYPHYNE JOHNSON,
`
`Third-Party Plaintiff,
`
`- against -
`
`I-ISBC MORTGAGE CORPORATION (USA),
`NORTHEAST AGENCIES, INC., and
`LESTER DAVIS,
`
`Third-Party Defendants.
`...........................................................................x
`
`Upon the reading and filing of the affirmation of Michael A. Mcersq” dated
`August I 8, 2017, the exhibits annexed thereto, the affidavit of William Hitselberger sworn to on
`
`August 18, 2017, and upon all prior pleadings and proceedings, and good cause being shown
`
`therein,
`
`'~--
`
`_
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`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
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`NYSCEF DOC. NO. 71
`NYSCEF DOC. NO. 71
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`
`
`INDEX NO. 150210/2017
`INDEX NO- ”0210/2017
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`RfiCfiIVfiD uYSCEF: 10/02/2017
`RECEIVED NYSCEF: 10/02/2017
`INDEX NO. 150210/2017
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`NYSCEF DOC. NO. 70
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`‘1
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`r.
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`'
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`I
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`"'
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`RECEIVED NYSCEF:_10/O2/2017
`'b
`
`NOW, upon the motion of Plaintiff, Tower Insurance Company of New York,
`
`it is
`
`hereby:
`
`ORDERED, that Defendants appear and show cause at Part fof this Court to be held
`
`f4,
`'
`///
`at the Courthouse located at a Centre Street, New York, New York on the “a
`day of
`NWQMW, 2017,1at aim“ or as soon thereafter as counsel can be heard, why an Order
`
`should not be entered:
`
`a) Pursuant to CPLR 2201 vacating the “stayed" marking ofthis matter; and I
`
`b) For such other and further relief as this Court deems just, proper and equitable.
`
`ORDERED, that a confirmed copy ofthis order to show cause and the papers annexed
`thereto shall be served upon all, parties, via E-Filing, on or before the 55 day of
`06"“ch , 2017, and said service shall be deemed good and sufficient.
`
`No prior application has been made for the relief sought herein.
`
`ENTER:
`
`
`
`
`
`.no
`.
`A
`BERT” 3353 yzr/M
`
`
`J.C.C.
`
`20f3
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`2 of 128
`2 of 128
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`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`NYSCEF DOC. NO. 71
`NYSCEF DOC. NO. 71
`
`INDEX NO. 150210/2017
`INDEX N0~ ”0210/2017
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`
`
`
`
`RnCnIVnD VYSCEF: 10/02/2017
`RECEIVED NYSCEF: 10/02/2017
`INDEX NO. 150210/2017
`. RECEIVED NYSCEF: 10/02/2017
`.“\
`
`NYSCEF DOC. NO. 70
`
`‘
`
`1‘-
`
`’
`
`1
`
`Q
`
`_
`
`‘21
`
`The following are the parties to be served:
`
`To:
`
`VIA E-Fl LING
`
`Zachary G. Meyer, Esq.
`ZG Meyer, PLLC
`Attorneys for Defendant; Typhyne Johnson
`14 Penn Plaza, Suite 1315
`New York, NY 10122
`(212) 265-8280
`
`\
`
`Alan S. Friedman, Esq.
`Attorney for Defendant, Yvette Brantley
`875 Avenue ofthe Americas, Suite 1802
`New York, NY 10001
`(212) 244-5424
`
`Heather, H. Kidera, Esq.
`Attorneys for Third-Party Defendant, H SBC
`Phillips Lytle LLP
`340 Madison Avenue, 17th Floor
`New York, NY 10173-1922
`(212) 508 0479
`
`Hillary J. Raimondi, Esq.
`Attorneys for Third-Party Defendant, Northeast Agencies
`Traub Lieberman Straus & Shrewsberry LLP
`Seven Skyline Drive
`Hawthorne, NY 10532
`
`Nancy Q. Koba, Esq.
`Attomeys for Third-Party Defendant, Lester Davis
`Wood Smith Henning & Bennan LLP
`685 Third Avenue, 18'“ Fl.
`New York, NY 10017
`)-
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`

`

`150210/2017
`INDEX NO. 150210/2017
`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`
`
`INDEX N0-
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`
`
`
`--.
`_\
`4
`4
`RECEIVED NYSCEF: 10/02/2017
`NYSCEF DOC. NO. 71
`fig"— R*'C*'ffiffifig WPEEszBrWW
`
`
`NYSCEF DOC. NO.
`57
`RECEIVED NYSCEF: 08/18/2017
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`___________________________________________________________________________X
`
`TOWER INSURANCE COMPANY OF NEW YORK,
`
`Plaintiff,
`
`— against -
`
`TYPHYNE JOHNSON and YVETTE BRANTLEY,
`Defendants.
`___________________________________________________________________________X
`
`Index No.: 150210/2017
`
`AFFIRMATION
`
`IN SUPPORT OF
`ORDER T0 SHOW
`CAUSE
`
`TYPHYNE JOHNSON,
`
`Third-Party Plaintiff,
`
`— against -
`
`HSBC MORTGAGE CORPORATION (USA),
`NORTHEAST AGENCIES, INC., and
`
`LESTER DAVIS,
`
`Third-Party Defendants.
`___________________________________________________________________________X
`
`Michael A. McGarry, Jr., an attorney duly admitted to practice law in the courts of the
`
`State of New York, affirms the following under penalty of perjury, as follows:
`
`1.
`
`I am an attorney associated with the Law Office of James J. Croteau, attorneys of
`
`record for Plaintiff, Tower Insurance Company of New York (“Plaintiff”), and I have personal
`
`knowledge of the matters set forth below by reviewing the file maintained in this office.
`
`2.
`
`I submit this affirmation in support of Plaintiff’s motion by Order To Show Cause
`
`seeking an order: (a) pursuant to CPLR 2201 vacating the “stayed” marking of the instant action;
`
`and (b) for such other and filrther relief as this Court deemsjust, proper and equitable.
`
`1 of 5
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`4 of 128
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`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`NYSCEF DOC. NO. 71
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`
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`INDEX NO. 150210/2017
`INDEX NO. 150210/2017
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`
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`
`
`RECEIVED NYSCEF: 10/02/2017
`R*-C*-ffii5E3< WCEEbziB/Qgfion
`
`NYSCEF DOC. NO. 57
`
`RECEIVED NYSCEF: 08/18/2017
`
`PROCEDURAL HISTORY
`
`3.
`
`This declaratory judgment action arises from an alleged slip and fall incident
`
`involving Defendant, Yvette Brantley that occurred on January 26, 2015 at a premises owned by
`
`Defendant, Typhyne Johnson and located at 3553 Boller Ave., Bronx NY 10466.
`
`4.
`
`On January 9, 2017, Plaintiff filed a Summons and Complaint for Declaratory
`
`Judgment in this matter.
`
`(A true and accurate copy, excluding the exhibits, is annexed hereto as
`
`Exhibit “A”.)
`
`5.
`
`On January 29, 2017, Defendant, Typhyne Johnson filed an Answer and
`
`Counterclaim. (A true and accurate copy is annexed hereto as Exhibit “B”.)
`
`6.
`
`On February 1, 2017, Defendant, Yvette Brantley filed an Answer.
`
`(A true and
`
`accurate copy is annexed hereto as Exhibit “C”.)
`
`7.
`
`On February 6, 2017, Plaintiff filed a Reply to the Counterclaims filed by
`
`Defendant, Typhyne Johnson. (A true and accurate copy is annexed hereto as Exhibit “D”.)
`
`8.
`
`On February 8, 2017, Defendant, Typhyne Johnson filed a Third-Party Summons
`
`and Complaint against Third—Party Defendants, HSBC MORTGAGE CORPORATION (USA),
`
`NORTHEAST AGENCIES, INC., and LESTER DAVIS.
`
`(A true and accurate copy, without
`
`exhibits, is annexed hereto as Exhibit “E”.)
`
`9.
`
`On March 6, 2017, Third-Party Defendant, Lester Davis filed an Answer to the
`
`Third Party Complaint. (A true and accurate copy is annexed hereto as Exhibit “F”.)
`
`10.
`
`On March
`
`6,
`
`2017,
`
`Third-Party Defendant, HSBC MORTGAGE
`
`CORPORATION (USA) filed a Pre-Answer Motion to Dismiss the Third Party Complaint.
`
`(A
`
`true and accurate copy, without the supporting documents, is annexed hereto as Exhibit “G”.)
`
`20f5
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`INDEX NO. 150210/2017
`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`INDEX N0~ 150210/2017
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`
`NYSCEF DOC. NO. 71
`RECEIVED NYSCEF: 10/02/2017
`: N
`RK COUNTY CLERK 08 18 2017 12:29 PM
`R‘C‘EMWCE-flgbfigtgmon
`
`NYSCEF DOC. NO. 57
`RECEIVED NYSCEF: 08/18/2017
`
`11.
`
`On March 24, 2017, Defendant/Third-Party Plaintiff, Typhyne Johnson filed a
`
`Cross-Motion for costs and attomey’s fees against Third-Party Defendant, HSBC MORTGAGE
`
`CORPORATION (USA).
`
`(A true and accurate copy, Without the supporting documents,
`
`is
`
`annexed hereto as Exhibit “H”.)
`
`12.
`
`On March 27, 2017, Third-Party Defendant, NORTHEAST AGENCIES, INC.
`
`filed an Answer to the Third Party Complaint.
`
`(A true and accurate copy is annexed hereto as
`
`Exhibit “1”.)
`
`13.
`
`The various Motions were then Opposed, although the papers have not been
`
`attached to this Affirmation.
`
`14.
`
`On June 6, 2017, the Court entered an Order and Decision on the motions,
`
`denying the motions, with leave to resubmit, upon lifting of a “stay” in this matter.
`
`(A true
`
`and accurate copy is annexed hereto as Exhibit “J”.)
`
`15.
`
`Apparently, the Court marked the within matter as “stayed” — although no
`
`party requested this relief — due to a liquidation order applicable to Non-Party, CastlePoint
`
`National Insurance Company, entered by the Superior Court of the State of California.
`
`16.
`
`On July 26, 2017, Plaintiff filed a Consent to Change Attorney.
`
`(A true and
`
`accurate copy is annexed hereto as Exhibit “K”.)
`
`THE INSTANT IS NOT STAYED
`
`17.
`
`CastlePoint National Insurance Company is the successor in interest by merger
`
`with Plaintiff, Tower Insurance Company of New York.
`
`(Affidavit of William Hitselberger at 11
`
`4.)
`
`3of5
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`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`NYSCEF DOC. NO. 71
`: N
`RK COUNTY CLERK 08 18 2017 12:29 PM
`NYSCEF DOC. NO. 57
`
`INDEX NO. 150210/2017
`INDEX NO- ”0210/2017
`
`
`
`
`RECEIVED NYSCEF: 10/02/2017
`”'0'meWcigmg/QWO”
`RECEIVED NYSCEF: 08/18/2017
`
`18.
`
`In an acquisition which took place in approximately 2014, National General
`
`Holdings Corp. acquired the personal lines insurance operations of Tower Group International,
`
`Ltd, which included Plaintiff, Tower Insurance Company of New York. (Id, at 1] 5.)
`
`19.
`
`In accordance with a Cut-Through Reinsurance Agreement, which was effective
`
`as of January 1, 2014, personal lines claims pertaining to Plaintiff, Tower Insurance Company of
`
`New York pre-dating January 1, 2014 are subject to the liquidation Order entered by the Superior
`
`Court of the State of California. (Li at 1} 6.)
`
`20.
`
`Therefore, the claim at issue, which is a January 26, 2015 date of loss, is not
`
`subject to any liquidation order entered by the Superior Court of the State of California.
`
`(E at 11 7.)
`
`21.
`
`As a result, this action should not be and is_n_9_t stayed pursuant to any
`
`liquidation order or any other proceedings. Q; at 1T 3.)
`
`WHEREFORE, Plaintiff, Tower Insurance Company of New York respectfully requests
`
`that this Court issue an Order lifting the “stayed” marking, that this case be placed back on the
`
`active calendar, and that the Court grant such other and further relief as it deems just, proper and
`
`equitable.
`
`Dated:
`
`Jersey City, New Jersey
`August 18, 2017
`
`Respectfully submitted,
`
`LAW OFFICE OF JAMES J. CROTEAU
`
`(Staff Counsel to National General Insurance and
`Affiliated Companies)
`
`
`
`By:
`
`Michael A. McGarry, Jr.
`
`4of5
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`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
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`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`
`
`NYSCEF DOC. NO. 71
`_,,. EfiCN"
`oRK COUNTY CLERK 08M2017 12:29 PM
`NYSCEF DOC. NO. 57
`
`INDEX NO. 150210/2017
`INDEX N0~ 150210/2017
`
`
`
`
`RECEIVED NYSCEF: 10/02/2017
`Ri'ci'fifflW-CagbZiB/Qafim
`RECEIVED NYSCEF: 08/18/2017
`
`Attorneys for Plaintiff
`Harborside 2
`
`200 Hudson Street, Suite 800
`Jersey City, New Jersey 07311
`(212) 380-0802
`
`*Pursuant to Judiciary Law § 470, the Law Office
`of James J. Croteau maintains an Office at 59
`Maiden Lane — 40th Floor, New York, New York.
`
`To:
`
`VIA E-FILING
`
`Zachary G. Meyer, Esq.
`ZG Meyer, PLLC
`Attorneys for Defendant, Typhyne Johnson
`14 Penn Plaza, Suite 1315
`New York, NY 10122
`
`(212) 265-8280
`
`Alan S. Friedman, Esq.
`Attorney for Defendant, Yvette Brantley
`875 Avenue of the Americas, Suite 1802
`New York, NY 10001
`
`(212) 244-5424
`
`Heather, H. Kidera, Esq.
`Attorneys for Third-Party Defendant, HSBC
`Phillips Lytle LLP
`340 Madison Avenue, 17th Floor
`New York, NY 10173-1922
`
`(212) 508 0479
`
`Hillary J. Raimondi, Esq.
`Attorneys for Third-Party Defendant, Northeast Agencies
`Traub Lieberman Straus & Shrewsberry LLP
`Seven Skyline Drive
`Hawthorne, NY 10532
`
`Nancy Q. Koba, Esq.
`Attorneys for Third—Party Defendant, Lester Davis
`Wood Smith Henning & Berman LLP
`685 Third Avenue, 18th Fl.
`New York, NY 10017
`
`50135
`
`80f 128
`8 of 128
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`

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`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`NYSCEF DOC. NO. 71
`NYSCEF DOC. NO. 71
`
`IND
`EX NO.
`150210/2017
`INDEX NO. 150210/2017
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`
`
` 4|IV-v E
`
`
`VYSCEF:
`Rn
`10/02/2017
`RECEIVED NYSCEF: 10/02/2017
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`
`___________________________________________________________________________X
`
`TOWER INSURANCE COMPANY OF NEW YORK,
`
`Plaintiff,
`
`- against -
`
`TYPHYNE JOHNSON and YVETTE BRANTLEY,
`
`Defendants.
`___________________________________________________________________________X
`
`Index No.: 150210/2017
`
`AFFIDAVIT
`
`OF WILLIAM
`HITSELBERGER
`
`TYPHYNE JOHNSON,
`
`Third-Party Plaintiff,
`
`- against -
`
`HSBC MORTGAGE CORPORATION (USA),
`NORTHEAST AGENCIES, INC., and
`
`LESTER DAVIS,
`
`Third-Party Defendants.
`___________________________________________________________________________X
`
`William Hitselberger, being duly sworn, deposes and says:
`
`1.
`
`2.
`
`I am the Treasurer for CastlePoint National Insurance Company.
`
`I submit this affidavit in support of Plaintiff, Tower Insurance Company of New
`
`York’s Motion to lift the “stayed” marking in the above-entitled action.
`
`3.
`
`
`This action should not be and is not stayed pursuant to any liquidation order or
`
`any other proceedings.
`
`4.
`
`CastlePoint National Insurance Company is the successor in interest by merger
`
`with Plaintiff, Tower Insurance Company of New York.
`
`9 of 128
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`

`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`NYSCEF DOC. NO. 71
`NYSCEF DOC. NO. 71
`
`INDEX NO. 150210/2017
`INDEX NO- 150210/2017
`
`
`
`
`
`R«C«1v«D VYSCEF: 10/02/2017
`RECEIVED NYSCEF: 10/02/2017
`
`
`
`5.
`
`In an acquisition which took place in approximately 2014, National General
`
`Holdings Corp. acquired the personal lines insurance operations of Tower Group International,
`
`Ltd, which included Plaintiff, Tower Insurance Company of New York.
`
`6.
`
`In accordance with a Cut-Through Reinsurance Agreement, which was effective
`
`as of January 1, 2014, personal lines claims pertaining to Plaintiff, Tower Insurance Company of
`
`New York pre-dating January 1, 2014 are subject to the liquidation Order entered by the Superior
`
`Court of the State of California.
`
`7.
`
`Therefore, the claim at issue, which is a Januarv 26. 2015 date of loss, is not
`
`subject to any liquidation order entered by the Superior Court of the State of California.
`
`
`
`_///,
`
`Willia Hitselberger
`
`Sworn to before me this
`/i dayof August, 2017
`
`
`
`
`
`
`
`LAURIE ANN LEPORE
`. Notary Public. State of New York
`
`Registration #01LE6338207
`
`Qualified In Richmond County
`
`| Commission Expires March 7. 2020
`
`2
`
`10 of 128
`10 of 128
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`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`NYSC 3F DOC. NO. 71
`NYSCEF DOC. NO. 71
`
`IND
`EX NO.
`150210/2017
`INDEX NO. 150210/2017
`
` VYSC
`
` 4|IV-v .D
` 3F:
`
`10/02/2017
`RECEIVED NYSCEF: 10/02/2017
`
`EXHIBIT A
`
`11 of 128
`11 of 128
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`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`
`
`--5: DEL; A!
`NYSCEF DOC. NO. 71
`IlFfiLED: NEW? YORK COUNTY CLERK om_201712:23 BM
`NYSCEF DOC. NO. 58
`
`INDEX NO. 150210/2017
`INDEX NO- 150210/2017
`
`
`
`
`SC
`'
`/
`017
`fiCfi
`RECEIVED NYSCEF: 10/02/2017
`R
`1131515‘316-
`li§0218/%{%
`RECEIVED NYSCEF: os/m9/2017
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`
`TOWER INSURANCE COMPANY OF NEW YORK,
`
`Plaintiff,
`
`- against -
`
`TYPHYNE JOHNSON and YVETTE BRANTLEY,
`
`Defendants.
`
`
`TO THE ABOVE NAMED DEFENDANTS:
`
`Date of Filing:
`
`Index No.:
`
`SUMMONS
`
`YOU ARE HEREBY SUMMONED in a civil action in the Supreme Court of the State
`of New York, instituted by the above-named plaintiff, and required to serve upon the attorney for
`plaintiff, whose name and address appears below, an answer to the attached complaint within 20
`days after service of the Summons and Complaint upon you, exclusive of the day of service (or
`within 30 days afier service is complete if this summons is not personally delivered to you within
`the State of New York). If you fail to answer, judgment by default may be rendered against you
`for the relief demanded in the complaint.
`
`Place of Trial:
`Basis of Venue:
`
`New York County
`Plaintiffs Corporate Residence
`
`Dated: Jersey City, New Jersey
`January 9, 2017
`
`Brown & Associates
`(Stafl Counsel ofNational General Insurance and
`Afliliated Companies)
`
`By:
`
`Michael A. McGarry, Jr.
`Attorneys for Plaintiff,
`Tower Insurance Company of New York
`Harborside Financial Center
`800 Plaza 2, 8‘“ Fl.
`Jersey City, NJ 07311
`212-3 80-0802
`
`*Pursuant to Judiciary Law § 470, Brown &
`Associates maintains an office at 59 Maiden
`Lane, 40th Floor, New York, NY 10038
`
`1 of 9
`
`12 of 128
`12 of 128
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`

`

`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`
`
`«« no; .0
`NYSCEF DOC. NO. 71
`iFILED: NEW YORK COUNTY CLERK 08—201712:29 PM
`NYSCEF Doc. NO. 58
`
`INDEX NO. 150210/2017
`INDEX N0~ 150210/2017
`
`
`
`
`
`R«.C«.IV_LD \IYSCEF'
`1
`/ 2 2017
`RECEIVED NYSCEF: 10/02/2017
`INDEX NO- ”(3218/5205
`RECEIVED NYSCEF: 08/18/2017
`
`To:
`
`Typhyne Johnson
`39 Crawford Street
`
`Yonkers, NY 10705
`
`Yvette Brantley
`3553 Boller Avenue
`
`Bronx, NY 10451
`
`Courtesy Copy To:
`
`Alan S. Friedman, Esq.
`Attorney for Yvette Brantley in Underlying Action
`875 Avenue of the Americas, Suite 1802
`New York, NY 10001
`
`(212) 244-5424
`
`2 of 9
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`

`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`
`
`vac“ no;
`.-
`NYSCEF DOC. NO. 71
`lFILED: NEW YORK COUNTY CLERK 08—201712:29 PM
`NYSCEF DOC. NO. 58
`
`INDEX NO. 150210/2017
`
`INDEX NO- 150210/2017
`
`
`
`
`
`R«.C«.IVED \IYSCEF'
`1
`/ 2 2017
`RECEIVED NYSCEF: 10/02/2017
`INDEX NO' 150218/9017
`RECEIVED NYSCEF: 08/18/2017
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`
`TOWER INSURANCE COMPANY OF NEW YORK,
`
`Plaintiff,
`
`- against —
`
`TYPHYNE JOHNSON and YVETTE BRANTLEY,
`
`Defendants.
`
`
`Date ofFiling:
`
`Index No.:
`
`COMPLAINT
`
`Plaintiff, Tower Insurance Company of New York (“Tower”), by its attorneys, Brown &
`
`Associates, as and for its Complaint against the Defendants in this declaratory judgment action
`
`herein, respectfully alleges upon information and belief:
`
`THE PARTIES
`
`1.
`
`Tower Insurance Company of New York is and was at all relevant times an
`
`insurance company organized under the laws of the State of New York, with its principal office
`
`located at 59 Maiden Lane, New York, County of New York, State of New York, and authorized
`
`and licensed to write policies of insurance in the State of New York.
`
`2.
`
`Defendant, Typhyne Johnson, resides at 39 Crawford Street, Bronx, New York
`
`10705.
`
`10466.
`
`3.
`
`Defendant, Yvette Brantley, resides at 3553 Boller Avenue, Bronx, New York
`
`ALLEGATIONS COMMON TO ALL COUNTS
`
`4.
`
`On January 26, 2015, Defendant, Typhyne Johnson resided at 39 Crawford Street,
`
`Yonkers, New York 10705.
`
`3 of 9
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`14 of 128
`14 of 128
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`

`

`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`
`_«« no; .0
`NYSCEF DOC. NO. 71
`iFILED: NEW YORK COUNTY CLERK 08—201712:29 PM
`NYSCEF DOC. NO. 58
`
`INDEX NO. 150210/2017
`INDEX NO- 150210/2017
`
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 10/02/2017
`RECEIVED NYSCEF: 10/02/2017
`INDEX NO” 150210/2017
`RECEIVED NYSCEF: 08/18/2017
`
`5.
`
`On January 26, 2015, Defendant, Typhyne Johnson owned the multiple family
`
`dwelling located at 3553 Boller Avenue, Bronx, New York 10466.
`
`6.
`
`On January 26, 2015, Defendant, Typhyne Johnson did not reside at 3553 Boller
`
`Avenue, Bronx, New York 10466.
`
`7.
`
`Defendant, Yvette Brantley is the plaintiff in an action currently pending in the
`
`Supreme Court of the State of New York, County of Bronx, captioned, Yvette Brantley v.
`
`Typhyne Johnson, bearing Index No. 26276/2016 (hereinafter the “Underlying Action”),
`
`in
`
`which she seeks damages from the defendant for injuries she suffered as the result of a slip and
`
`fall at the premises located at 3553 Boller Avenue, Bronx, New York 10466 on January 26,
`
`2015.
`
`(A true copy of the Summons and Complaint filed in the Underlying Action is annexed
`
`hereto as “Exhibit A”.)
`
`8.
`
`On or about December 7, 2016 Tower advised Defendant, Typhyne Johnson that
`
`it was disclaiming any duty to defend or indemnify her for the damages claimed against her by
`
`Defendant, Yvette Brantley and for the damages sought in the Underlying Action for a number
`
`of reasons, including, but not limited that the Premises did not meet the Policy’s definition of a
`
`“residence premises” because the insured did not reside there on the Date of Loss, and it
`
`therefore was not an “insured location.” Additionally, Tower disclaimed based on the Policy’s
`
`exclusion of coverage for bodily injury claims arising out of the rental of a premises that is not
`
`an “insured location.”
`
`9.
`
`Defendant, Yvette Brantley is a defendant in this declaratory judgment action
`
`because she is a party who is interested in its outcome.
`
`4 of 9
`15 of 128
`15 of 128
`
`

`

`INDEX NO. 150210/2017
`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`INDEX NO- 150210/2017
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`
`
`
`
`N
`D
`N
`71
`RfiCfiIVfiD VYSCEF: 10/02/2017
`NYSCEF DOC. NO. 71
`RECEIVED NYSCEF: 10/02/2017
`FILED: NEW YORK COUNTY CLERK 08g18g2017 12:29 PMI
`INDEX NO' ”0210/2017
`NYSCEF DOC. NO, 58
`RECEIVED NYSCEF: 08/18/2017
`
`THE POLICY
`
`10.
`
`Tower issued Policy No. DPP2652045 to Defendant, Typhyne Johnson for the
`
`premises located at 3553 Boiler Avenue, Bronx, New York 10466 (“Premises) for the one year
`
`period commencing on December 8, 2014 and ending on December 8, 2015 (“Policy”).
`
`(A
`
`certified copy of the Policy is annexed hereto as “Exhibit B”).
`
`11.
`
`The terms and conditions of the Policy are incorporated into and made part of this
`
`action by reference.
`
`12.
`
`The declarations page of the Policy describes the premises as a three family home
`
`which is owner occupied.
`
`13.
`
`The declarations page of the Policy states that the “residence premises” covered
`
`by the Policy is the Premises located at 3553 Boller Avenue, Bronx, New York 10466.
`
`14.
`
`On January 26, 2015, the date Defendant, Yvette Brantley was allegedly injured,
`
`the Premises did not qualify as a “residence premises” and thus does not qualify as an “insured
`
`location”.
`
`AS AND FOR A FIRST CAUSE OF ACTION
`
`15.
`
`Tower repeats and realleges the allegations of all prior paragraphs of the
`
`complaint as if set forth at length herein.
`
`16.
`
`The Policy provides coverage for claims for bodily injury which occur at an
`
`“insured location”.
`
`17.
`
`The Premises located 3553 Boller Avenue, Bronx, New York 10466 do not
`
`qualify as either a “residence premises” or an “insured location” within the meaning of those
`
`terms as defined by the Policy
`
`5 of 9
`16 of 128
`16 of 128
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`N
`no
`to
`NYSCEF DOC. NO. 71
`FILED: NEW YORK COUNTY CLERK OBE2017 12:29 P
`NYSCEF DOC. NO. 58
`
`INDEX NO. 150210/2017
`INDEX NO- ”0210/2017
`
`
`
`
`
`RnCfiIVnD VYSCEF: 10/02/2017
`RECEIVED NYSCEF: 10/02/2017
`INDEX NO- 150210/2017
`RECEIVED NYSCEF: 08/18/2017
`
`18.
`
`On January 26, 2015, the date Defendant, Yvette Brantley was allegedly injured,
`
`Defendant, Typhyne Johnson did not reside at the Premises.
`
`19.
`
`Tower has no duty to defend or indemnify Defendant, Typhyne Johnson, for the
`
`claims made against her in the Underlying Action.
`
`20.
`
`As a result, Tower is entitled to a judgment declaring that it has no duty to
`
`indemnify Defendant, Typhyne Johnson, or otherwise provide coverage for the claims made in
`
`the Underlying Action, together with all such other relief as the Court deems just and proper.
`
`AS AND FOR A SECOND CAUSE OF ACTION
`
`21.
`
`Tower repeats and realleges the allegations of all prior paragraphs of the
`
`Complaint as if set forth at length herein.
`
`22.
`
`Tower has no duty to defend or indemnify Defendant, Typhyne Johnson for the
`
`claims made against her in the Underlying Action as the Policy does not provide personal
`
`liability coverage, or medical payments to others coverage, for bodily injury arising out of the
`
`rental of a premises that is not an “insured location.”
`
`23.
`
`Tower has no duty to defend or indemnify Defendant, Typhyne Johnson for the
`
`claims made against her in the Underlying Action as the Policy does not provide personal
`
`liability coverage, or medical payments to others coverage, for bodily injury arising out of or in
`
`connection with a “business” engaged in by an insured.
`
`24.
`
`Defendant, Yvette Brantley’s alleged injuries arose out of a Premises rented by
`
`Defendant, Typhyne Johnson that was not an “insured location” within the meaning of the
`
`applicable terms as defined by the Policy.
`
`6of9
`
`17 of 128
`17 of 128
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`N
`I.
`no
`NYSCEF DOC. NO. 71
`FILED: NEW YORK COUNTY CLERK OBE2017 12:29 PM
`NYSCEF Doc. NO. 58
`
`INDEX NO. 150210/2017
`INDEX NO- 150210/2017
`
`
`
`
`
`RnCnIVnD NYSCEF: 10/02/2017
`RECEIVED NYSCEF: 10/02/2017
`INDEX NO- 150210/2017
`RECEIVED NYSCEF: 08/18/2017
`
`25.
`
`Defendant, Yvette Brantley’s alleged injuries arose out Of a “business” engaged in
`
`by Defendant, Typhyne Johnson within the meaning Of the applicable terms as defined by the
`
`Policy.
`
`26.
`
`The Premises located at 3553 Boller Avenue, Bronx, New York 10466 do not
`
`qualify as either a “residence premises” or an “insured location” within the meaning of those
`
`terms as defined by the Policy.
`
`27.
`
`As a result, Tower is entitled to a judgment declaring that it has no duty to
`
`indemnify Defendant, Typhyne Johnson, or otherwise provide coverage for the claims made in
`
`the Underlying Action, together with all such other relief as the Court deems just and proper.
`
`AS AND FOR A THIRD CAUSE OF ACTION
`
`28.
`
`Tower repeats and realleges the allegations Of all prior paragraphs of the
`
`Complaint as if set forth at length herein.
`
`29.
`
`Tower has no duty to defend or indemnify Defendant, Typhyne Johnson for the
`
`claims made against her in the Underlying Action as the Policy does not provide personal
`
`liability coverage for bodily injury arising out Of premises owned by insured, or rented to Others
`
`that is not an “insured location.”
`
`30.
`
`Defendant, Yvette Brantley’s alleged injuries arose out of a Premises rented by
`
`Defendant, Typhyne Johnson that
`
`is not an “insured location” within the meaning of the
`
`applicable terms as defined by the Policy.
`
`31.
`
`The Premises located at 3553 Boller Avenue, Bronx, New York do not quality as
`
`either a “residence premises” or an “insured location” within the meaning Of those terms as
`
`defined by the Policy.
`
`7of9
`
`18 of 128
`18 of 128
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`N
`3F Do
`No
`71
`NYSCEF DOC. NO. 71
`FILED: NEW YORK COUNTY CLERK 08332017 12:29 PM
`NYSCEF DOC. NO. 58
`
`
`
`INDEX NO. 150210/2017
`INDEX NO- 150210/2017
`
`
`
`
`
`RnCnIVnD VYSCEF: 10/02/2017
`RECEIVED NYSCEF: 10/02/2017
`INDEX NO- 150210/2017
`RECEIVED NYSCEF: 08/18/2017
`
`32.
`
`As a result, Tower is entitled to a judgment declaring that it has no duty to
`
`indemnify Defendant, Typhyne Johnson, or otherwise provide coverage for the claims made in
`
`the Underlying Action, together with all such other relief as the Court deems just and proper.
`
`WHEREFORE Plaintiff, Tower Insurance Company of New York respectfully requests
`
`that this Court issue ajudgment declaring that it has no duty to defend and indemnify Defendant,
`
`Typhyne Johnson against the claims being made against her in the Underlying Action pending in
`
`the Supreme Court of the State of New York, County of Bronx, captioned Yvette Brantley v.
`
`Typhyne Johnson and bearing Index No. 26276/2016, and no duty to provide medical payments
`
`to others coverage to Defendant, Yvette Brantley, and that this Court grant Plaintiff, Tower
`
`Insurance Company of New York, costs and attorney’s fees and such other relief as it deems just
`
`and proper.
`
`Dated: Jersey City, New Jersey
`January 9, 2017
`
`Brown & Associates
`(Stafl Counsel ofNational General Insurance and
`Affiliated Companies)
`
`
`
`By:
`
`Michael A. McGarry, Jr.
`Attorneys for Plaintiff,
`Tower Insurance Company of New York
`Harborside Financial Center
`800 Plaza 2, 8th Fl.
`Jersey City, NJ 07311
`212-380-0802
`
`*Pursuant to Judiciary Law § 470, Brown &
`Associates maintains an office at 59 Maiden
`Lane, 40th Floor, New York, NY 10038
`
`80f9
`19 of 128
`19 of 128
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`no
`A.
`NYSCEF DOC. NO. 71
`FILED: NEW YORK COUNTY CLERK 08m2017 12:29 PM
`NYSCEF DOC. NO. 58
`
`
`
`INDEX NO. 150210/2017
`INDEX NO- ”0210/2017
`
`
`
`
`
`RfiCfiIVfiD VYSCEF: 10/02/2017
`RECEIVED NYSCEF: 10/02/2017
`INDEX NO' ”0210/2017
`RECEIVED NYSCEF: 08/18/2017
`
`INDEXNO.:
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`TOWER INSURANCE COMPANY OF NEW YORK,
`
`Plaintiff,
`
`-against-
`
`TYPHYNE JOHNSON and YVETTE BRANTLEY,
`
`Defendants.
`
`
`
`
`
`SUMMONS AND COMPLAINT
`
`BROWN & ASSOCIATES
`
`(Staff Counsel of National General Insurance and Affiliated Companies)
`Attorneys for Plaintiff
`Tower Insurance Company OfNew York
`Harborsia’e Financial Center
`800 Plaza 2, 8th Floor
`Jersey City, NJ 07311
`(212) 380-0802
`Fax:
`(336) 435-0938
`
`
`
`9 of 9
`20 of 128
`20 of 128
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`NYSC 3F DOC. NO. 71
`NYSCEF DOC. NO. 71
`
`IND
`EX NO.
`150210/2017
`INDEX NO. 150210/2017
`
` VYSC
`
` 4|IV-v .D
` 3F:
`
`10/02/2017
`RECEIVED NYSCEF: 10/02/2017
`
`EXHIBIT B
`
`21 of 128
`21 of 128
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`NYSCEF DOC. NO. 71
`FEEFEEJPQCNEW RK COUNTY CLERK on 2017 12:29 PM
`NYSCEF DOC. NO. 59
`
`
`INDEX NO. 150210/2017
`INDEX N0. 150210/2017
`
`RECEIVED NYSCEF: 10/02/2017
`RECEEWEIX NESCEFWWmJ/QOW
`RECEIVED NYSCEF: 08/28/2017
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`.....................................................................x
`TOWER INSURANCE COMPANY OF NEW YORK,
`
`Plaintzfl
`
`-against-
`
`Index NO.: 150210/2017
`
`ANSWER &
`COUNTERCLAIMS
`
`TYPHYNE JOHNSON and YVETTE BRANTLEY,
`
`Defendants.
`.....................................................................X
`
`Defendant TYPHYNE JOHNSON (hereinafter, “Defendant” , by and through their
`
`attorneys, ZG MEYER, PLLC, hereby set forth their Answer and Counterclaims to the
`
`Complaint of plaintiff TOWER INSURANCE COMPANY OF NEW YORK (hereinafter,
`
`“Plaintiff”), alleging the following upon information and belief:
`
`1.
`
`Defendant denies knowledge or information sufficient to form a belief as to the
`
`truth or falsity of the allegation set forth in paragraph “1” of Plaintiff‘s Complaint.
`
`2.
`
`Defendant admits the allegation set
`
`forth in paragraph “2” of Plaintiff‘s
`
`Complaint.
`
`3.
`
`Defendant denies knowledge or information sufficient to form a belief as to the
`
`truth or falsity of the allegation set forth in paragraph “3” of Plaintiff’s Complaint.
`
`4.
`
`Defendant admits the allegation set forth in paragraphs “4” through “6” of
`
`Plaintiff's Complaint.
`
`5.
`
`Defendant denies knowledge or information sufficient to form a belief as to the
`
`truth or falsity of the allegation set forth in paragraphs “7” through “9” of Plaintiff’s Complaint.
`
`6.
`
`Defendant admits the allegation set
`
`forth in paragraph “10” of Plaintiff’s
`
`Complaint.
`
`Page 1 of 12
`
`l of 13
`22 of 128
`22 of 128
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/02/2017 12:49 PM
`FILED: NEW YORK COUNTY CLERK 10m2017 12:49 PM
`
`NYSCEF DOC. NO. 71
`ITEEEEEENEE' ERR COUNTY CLERK 0872922017 12:29 PM]
`NYSCEF DOC. NO. 59
`
`
`INDEX NO. 150210/2017
`
`INDEX N0~ 150210/2017
`
`
`
`RECEIVED NYSCEF: 10/02/2017
`R‘C‘IWER NWEEMWWQO”
`RECEIVED NYSCEF: 08/28/2017
`
`7.
`
`Defendant denies knowledge or information sufficient to form a belief as to the
`
`truth or falsity of the allegation set forth in paragraphs “1 1” through “13” of Plaintiff’s
`
`Complaint.
`
`8.
`
`Defendant denies each and every allegation set forth in paragraphs “14" through
`
`“15” of Plaintiff‘s Complaint.
`
`9.
`
`Defendant denies knowledge or information sufficient to form a belief as to the
`
`truth or falsity of the allegation set forth in paragraph “16” of Plaintiff’s Compl

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