Corcoran v. National Specialty Insurance Company
ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Order, the court adopts the 50 R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the court DENIES plaintiff's motion for summary judgm ent and GRANTS defendant's cross-motion for summary judgment. The Clerk of Court is respectfully directed to enter judgment in favor of defendant National Specialty Insurance Company, and to close the case. Ordered by Judge Kiyo A. Matsumoto on 9/30/2017. (Tata, Vivek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ORDER ADOPTING REPORT
NATIONAL SPECIALTY INSURANCE
MATSUMOTO, United States District Judge:
Before the court is a Report and Recommendation
(Report and Recommendation (“R&R”), ECF No. 50) from Magistrate
Judge Robert M. Levy, recommending that the court deny
plaintiff’s motion for summary judgment and grant defendant’s
The R&R instructed that any objections to the R&R
be submitted within fourteen (14) days of the filing of the R&R
on August 15, 2017, but plaintiff has not filed any objections,
and the time to file objections has now passed.
No. 50 at 14-15.)
(See R&R, ECF
As Judge Levy noted, failure to file
objections within the specified time waives the right to appeal
(Id. (citing 28 U.S.C.§ 636(b)(1); Fed. R. Civ. P.
72, 6(a), 6(e)).)
For the reasons set forth below, the court
adopts the thorough and well-reasoned R&R in its entirety and
grants summary judgment for defendant.
This action arises from an August 11, 2012 incident at
El Potrero Mexican Restaurant (“El Potrero”) in Queens, New
York, in which plaintiff Tadhg Corcoran asserts that he was
assaulted and injured by El Potrero’s doorman, Tony A. Cherry,
(Plaintiff’s Memorandum of Law in Support of Motion for
Summary Judgment, ECF No. 44-1 at 1.)
On September 24, 2012,
Mr. Corcoran’s attorney, Scott Wolinetz, sent a letter to El
Potrero notifying the restaurant of Mr. Corcoran’s claim for
unspecified personal injuries.
The letter simply asserted that
Mr. Corcoran suffered injuries due to the “negligence,
carelessness and recklessness” of, inter alia, El Potrero’s
agents and employees, but it did not explain that the incident
was an assault, or provide any details about the claim other
than the date on which it occurred and its location at El
(September 24, 2012 Letter, ECF No. 40-1 at 2.1)
National Specialty Insurance Company, defendant in this action,
provided general commercial liability insurance to El Potrero,
and the letter concerning Mr. Corcoran’s claim was forwarded to
defendant’s third-party claims administrator, Risk Control
Associates (“RCA”), with a note that El Potrero had “no
knowledge” of the incident.
(Claim File, ECF No. 40-16 at 9
(entry for October 18, 2012).)
RCA employees attempted to
References to exhibit pages are to the page numbers of the
documents as filed on ECF.
contact Mr. Wolinetz on several occasions in October 2012 and
February 2013 to learn more about Mr. Corcoran’s claim, but were
unable to reach him, and El Potrero denied having knowledge of
(See id. at 8-9 (entries for October 18, 2012,
October 23, 2012, October 25, 2012, February 8, 2013, February
Mr. Corcoran commenced a personal injury action
against El Potrero and Mr. Cherry in state court on January
(See Complaint in Corcoran v. Cherry et al., ECF No.
40-2 at 3.)
On February 27, 2013, an RCA claims adjuster again
called and emailed Mr. Wolinetz, and Mr. Wolinetz responded by
email, attaching the complaint from the state lawsuit, which
included allegations describing the August 11, 2012 incident at
El Potrero in which plaintiff was injured.
(Claim File at 7;
see Complaint in Corcoran v. Cherry et al., ECF No. 40-2 at 35.)
On March 4, 2013, RCA notified both El Potrero and Mr.
Wolinetz that defendant disclaimed coverage of the
August 11, 2012 incident, pursuant to assault and battery
exclusions contained in El Potrero’s insurance policy with
(Claim File at 6-7.)
Mr. Corcoran served El Potrero
in the state tort case on March 29, 2013, but both El Potrero
and Mr. Cherry failed to appear or answer, and Mr. Corcoran
secured a default judgment on January 7, 2014.
Judgment in Corcoran v. Cherry, et al., ECF No. 44-10 at 2-4.)
A judgment in the amount of $1,263,157.33 was entered in favor
of plaintiff and against El Potrero and Mr. Cherry on October
31, 2014 in the Supreme Court of Queens County.
Judgment, Pl. Ex. I, ECF No. 44-11 at 1.)
Mr. Corcoran commenced this action on April 2, 2015,2
seeking a declaratory judgment that defendant is obligated to
provide coverage for El Potrero and pay the default judgment in
the underlying state tort case.
As Judge Levy explains, because
there is no dispute that El Potrero’s insurance policy with
defendant contained an assault and battery exclusion that would
otherwise preclude coverage of the August 11, 2012 incident, the
only issue presented by the instant motions is whether defendant
disclaimed coverage of the incident in a timely fashion.
at 9; see Plaintiff’s Memorandum of Law in Support of Motion for
After a careful analysis of the record, Judge Levy
concluded that defendant’s disclaimer of coverage was not
(R&R at 13.)
Judge Levy reasoned that Mr. Wolinetz’s
September 24, 2012 letter was devoid of any details that would
enable defendant either to determine whether it would cover
Mr. Corcoran’s claims against El Potrero, or to investigate the
The action was removed to this court on May 1, 2015, on the
basis of this court’s diversity jurisdiction. (Notice of
Removal, ECF No. 1.)
Judge Levy noted that RCA attempted to
contact Mr. Wolinetz on multiple occasions to get more details
concerning the claim, but received no responses, which suggested
that the claim had been abandoned — indeed, the RCA claims
adjuster noted on February 11, 2013 that she would “consider
denial” if she did not hear back from Mr. Wolinetz “by next
(Id.; see Claim File at 8-9.)
Mr. Wolinetz eventually did provide more details about the
underlying claim against El Potrero by sending defendant a copy
of the state court complaint against El Potrero and Mr. Cherry,
defendant disclaimed coverage within a week.
(See Claim File at
In addition, Judge Levy observed that plaintiff was not
substantially prejudiced by defendant’s disclaimer in early
March 2013, because by that time plaintiff had not yet served El
Potrero in the state tort case.
(R&R at 13.)
A district court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge” in an R&R.
28 U.S.C. § 636(b)(1)(C).
no objections are made, the court may adopt the R&R without de
novo review, see Thomas v. Arn, 474 U.S. 140, 150 (1985), and
need only review for clear error on the face of the record.
Fed. R. Civ. P. 72(b); Baptichon v. Nev. State Bank, 304 F.
Supp. 2d 451, 453 (E.D.N.Y. 2004), aff’d, 125 F. App’x 374 (2d
Cir. 2005) (summary order).
The court has reviewed the unopposed R&R for clear
error and, finding none, the court adopts the R&R in its
entirety pursuant to 28 U.S.C. § 636(b)(1).
court DENIES plaintiff’s motion for summary judgment and GRANTS
defendant’s cross-motion for summary judgment.
The Clerk of
Court is respectfully directed to enter judgment in favor of
defendant National Specialty Insurance Company, and to close the
September 30, 2017
Brooklyn, New York
Hon. Kiyo A. Matsumoto
United States District Judge
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