New York State Court of Claims

New York State Court of Claims

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. v. THE STATE OF NEW YORK, #2009-036-517, Claim No. 106936, Motion No. M-76220


Synopsis



Case Information

UID:
2009-036-517
Claimant(s):
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
Claimant short name:
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106936
Motion number(s):
M-76220
Cross-motion number(s):

Judge:
MELVIN L. SCHWEITZER
Claimant’s attorney:
LESTER SCHWAB KATZ & DWYER, LLPBy: Ellen M. Spindler, Esq.
Defendant’s attorney:
HERZFELD & RUBIN, P.C.By: Howard S. Edinburgh, Esq.
Third-party defendant’s attorney:

Signature date:
May 7, 2009
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant’s motion pursuant to CPLR 2221 (d) to reargue the court’s decision filed on December 9, 2008 denying claimant’s motion for summary judgment as moot and granting defendant’s cross-motion for summary judgment dismissing claimant’s amended verified claim is denied on the basis that the court did not overlook any material facts and did not misapprehend the applicable law.[1] Specifically, the court continues to adhere to its conclusion that claimant’s claim must be dismissed under Kenmore-Tonawanda School District v State of New York, 38 AD3d 203 (1st Dept 2007), lv denied, 10 NY3d 702 (2008). Claimant cites Bowker v NVR, Inc., 39 AD3d 1162 (4th Dept), lv denied, 42 AD3d 976 (2007), in which the New York State Insurance Fund apparently did not raise the exemption defense under Insurance Law § 1108 (c). However, in this case the New York State Insurance Fund did raise the exemption defense and this court is compelled to follow the Appellate Division’s decision in Kenmore-Tonawanda School District.



May 7, 2009
New York, New York

HON. MELVIN L. SCHWEITZER
Judge of the Court of Claims




[1].In connection with this motion, the court read and considered claimant’s Notice of Motion, dated January 16, 2009; Affirmation in Support of Motion to Reargue, dated January 16, 2009 and Memorandum of Law, dated January 16, 2009; Affidavit in Opposition to Claimant’s Reargument Motion, sworn to on March 17, 2009, together with exhibits annexed thereto, and Defendant State of New York’s Memorandum of Law in Opposition to Claimant National Union’s Reargument Motion, dated March 17, 2009; and Claimant’s Reply to Opposition to Claimant’s Motion for Summary Judgment, dated April 29, 2009, together with annexed exhibits.