Certain Underwriters at LLoyd's London subscribing to the policy attaching to certificate No.BP/15-0489 v. EBE of NY, Inc. et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED that the plaintiffs motion for a default judgment against defendant EBE of NY, Inc. is denied at this time without prejudice and will be considered when the motion for summary judgment against defendant James Wrenn is considered. See attached. Ordered by Judge Denis R. Hurley on 3/15/2018. (Gapinski, Michele)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CERTAIN UNDERWRITERS AT LLOYD’S
LONDON, subscribing to the policy attached
to Certificate no. BP/15-0489,
Plaintiff,
-againstEBE OF NY, INC., doing business as Vapor
Smoke Shop and JAMES WRENN,

ORDER ADOPTING R&R
16-CV-6938(DRH)(ARL)

Defendants.
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Presently before the Court is the Report and Recommendation of Magistrate Judge Arlene
R. Lindsay, dated February 20, 2018, (“R&R”), recommending the motion of plaintiff for a
default judgment against defendant EBE of NY, Inc., be denied at this time and be considered
when the motion for summary judgment against defendant James Wrenn is considered.
Plaintiff has filed objections to the Report. The principal objections is that “the basis of
[plaintiff’s] motion for default judgment against EBE - EBE has been served in this action and
has failed to interpose a timely answer - is separate and distinct from [plaintiff’s] motion as
against Wrenn on the merits of the claim as to liability.” Pl.’s March 6, 2018 Ltr. at 1-2.
Having reviewed this matter de novo, the Court concludes that it is appropriate to deny
the motion without prjudice at this time and consider it when the motion for summary judgment
against defendant James Wrenn is considered. The Court rejects plaintiff’s contention that the
two motions are separate and distinct as to liability. The basis for the claim against EBE is that
there is no coverage under the policy’s Designated Premises Limitation Endorsement and
Products Completed Operations Hazard Exclusion. (Pl.’s Mem. In Supp. of Default Judgment
(DE 14-14) at 4. Plaintiff’s memorandum in support of the motion against Wrenn opens with the

following statement:
The grounds in support of this motion for summary judgment are
similar to those in Underwriters' motion for default judgment
against defendant EBE of NY, Inc. d/b/a Vapor Smoke Shop
("EBE"), which is currently pending before this Court. Simply
stated, no coverage exists under the insurance policy Underwriters
issued to EBE for bodily injury that occurs away from the policy's
designated premises located at 2059 Hempstead Turnpike,
East Meadow, NY. Because the bodily injuries at issue in the
underlying litigation occurred approximately seven miles away
from those designated premises, there is no coverage under
the policy.
(Pl.’s Mem. in Supp. of Motion for Summary Judgment against James Wrenn (DE 22-14) at 1.)
Given the referenced exclusion is the pivotal issue in both motions, it is proper for the motions to
be considered together. Accordingly,
IT IS HEREBY ORDERED that the plaintiff’s motion for a default judgment against
defendant EBE of NY, Inc. is denied at this time without prejudice and will be considered when
the motion for summary judgment against defendant James Wrenn is considered.
Dated: Central Islip, New York
March 14, 2018

/s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

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