Employers Insurance Company of Wausau v. Kingstone Insurance Company

Filing 59

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 58 Report and Recommendations. Accordingly, it is hereby ORDERED AND ADJUDGED as follows: 1. The Report and Recommendation of United States Magistrate Judge Stewart Aaron dated December 4, 2019 is hereby APPROVED, ADOPTED, and RATIFIED by the Court in its entirety; 2. Pursuant to Magistrate Judge Aaron's recommendation, Plaintiff's motion for partial summary judgment is hereby GRANTED. Defendant's motion for summary judgme nt is hereby DENIED; 3. Defendant Kingstone Insurance Company has a duty to defend Port Authority of New York and New Jersey, Capital Cleaning Contractors, Inc. of New York, and Bombardier Transportation (Holdings) USA Inc. in the underlying acti on, James Nunziato v. The Port Authority of New York and New Jersey, Bombardier Transportation (Holdings) USA Inc. and Capital Cleaning Contractors, Inc. of New York, Index No. 23303/2015E, which is pending in the Supreme Court of the State of New York, County of Bronx. Furthermore, Defendant's insurance coverage applies on a primary basis before coverage under Plaintiff's policy. SO ORDERED. (Signed by Judge Deborah A. Batts on 12/19/2019) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------X
Employers Insurance Company of Wausau,
Plaintiff,
v.

17 Civ. 3970 (DAB)
ADOPTION OF REPORT
& RECOMMENDATION

Kingstone Insurance Company,
Defendant.
------------------------------------------X

DEBORAH A. BATTS, United States District Judge.

This

matter

is

before

the

Court

upon

the

Report

and

Recommendation of United States Magistrate Judge Stewart D. Aaron
(“Report”).

Judge

Aaron’s

Report

recommends

that

Plaintiff’s

motion for partial summary judgment be GRANTED and that Defendant’s
motion for summary judgment be DENIED.
For the reasons set forth below, Judge Aaron’s Report and
Recommendation dated December 4, 2019 shall be adopted in full as
to

its

factual

recitations,

findings,

and

recommendations.

Accordingly, Plaintiff’s motion for partial summary judgment is
GRANTED and Defendant’s motion for summary judgment is DENIED.

I.

Background

The facts in this case are set forth in detail in Judge
Aaron’s Report and will not be restated here. (See R. & R. at 110, ECF No 58.) Judge Aaron’s Report and Recommendation was issued
and served on both Parties. To date, neither Party has filed any
objection.

II.

Discussion

Pursuant to 28 U.S.C. § 636(b)(1)(C), “[w]ithin fourteen days
after being served with a copy [of a Magistrate Judge’s Report and
Recommendation], any party may serve and file written objections
to such proposed findings and recommendations . . . .” 28 U.S.C.
§ 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(2). The district
court may adopt those portions of the report to which no timely
objection has been made, so long as there is no clear error on the
face of the record. See 28 U.S.C. § 636(b)(1)(A); Wilds v. United
Parcel

Serv.,

Inc.,

262

F.Supp.2d

163,

169

(S.D.N.Y.

2003).

Accordingly, this Court reviews the Report and Recommendation for
clear error because neither Party has filed a timely objection.
The Court has reviewed the Report and Recommendation and finds no
clear error on the face of the record.

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Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1.

The Report and Recommendation of United States Magistrate
Judge

Stewart

Aaron

dated

December

4,

2019

is

hereby

APPROVED, ADOPTED, and RATIFIED by the Court in its entirety;
2.

Pursuant

to

Magistrate

Judge

Aaron’s

recommendation,

Plaintiff’s motion for partial summary judgment is hereby
GRANTED. Defendant’s motion for summary judgment is hereby
DENIED;
3.

Defendant Kingstone Insurance Company has a duty to defend
Port Authority of New York and New Jersey, Capital Cleaning
Contractors, Inc. of New York, and Bombardier Transportation
(Holdings) USA Inc. in the underlying action, James Nunziato
v. The Port Authority of New York and New Jersey, Bombardier
Transportation

(Holdings)

USA

Inc.

and

Capital

Cleaning

Contractors, Inc. of New York, Index No. 23303/2015E, which
is pending in the Supreme Court of the State of New York,
County of Bronx. Furthermore, Defendant’s insurance coverage
applies on a primary basis before coverage under Plaintiff’s
policy.

SO ORDERED.
DATED:

New York, NY
December 19, 2019

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