New York Supreme Court, 1960

South Federal Street Associates v. Iron Fireman Manufacturing Co.

New York Supreme Court · Decided April 19, 1960 · Hecht

23 Misc. 2d 1070; 201 N.Y.S.2d 579; 1960 N.Y. Misc. LEXIS 3150

Counsel

Samuel and Peter Qettinger and Samuel W. Sherman for plaintiffs. Lowenstein, Pitcher, Hotchkiss, Amann d Parr (Herbert P. Polk and Gerard L. Goettel of counsel), for Commonwealth Insurance Company of New York and others, defendants. Max J. Gwertsman for Employers Liability Assurance Corporation, Ltd., defendant. John E. Morris for Iron Fireman Manufacturing Company, defendant.

Opinion of the Court

William C. Hecht, Jr., J.

Plaintiffs seek to recover on insurance policies issued by the three defendant companies who are the cross movants here, for loss to their property due to fire. The policies were issued to both plaintiff Bank as holder of legal *1071title to the premises under a trust agreement and the other plaintiff as the lessee in possession.

Subsequent to the commencement of the action here, the three insurance companies instituted suit in Illinois for a declaratory judgment adjudging that they are not liable on their policies for the losses sustained by plaintiffs.

In the within action plaintiffs have also joined Employers Liability Assurance Corporation Ltd. as a defendant and the latter is bringing in third-party defendants.

Plaintiffs’ third cause of action against the three insurance companies seeks to enjoin them from proceeding with the Illinois action and by this application plaintiffs seek an injunction pendente lite for the same relief. Defendants have cross-moved to dismiss the third cause of action on the ground that it does not state a cause of action.

The summons and complaint was served in the Illinois action first. The plaintiffs in that action (defendants here) are pursuing legal remedies challenging their coverage under the policies in question. It is true that not all the parties are before the Illinois court, but relief is sought only with respect to the specific policies of the plaintiffs in that action and the risks thereunder.

Plaintiffs here have not established extraordinary circumstances to warrant the restraining of the Illinois action. There is no indication of fraud or undue advantage and while plaintiffs allege harassment it is a conclusion unsupported by facts. If the plaintiffs here are advised that the Illinois declaratory action is improper, it may be fairly assumed that as the defendants to that suit they can seek to persuade the court to decline jurisdiction.

Consequently, the motion for a temporary injunction is denied and the cross motion is granted. Settle order.

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