NEW YORK SUPREME COURT – COUNTY OF BRONX
Court Order
NEW SOUTH INSURANCE COMPANY Index No. 806287-2013
-against-
SPRAGSTEIN TRANSPORTATION Hon. John A. Barone, Justice
Upon the foregoing papers this: Order of the Court dated August 8, 2014 is vacated. Plaintiff may effect service upon defendant Grimaldy Silverio Toribo subsection 308(5). That subsection dealing with substituted Plaintiff is to complete service by affixing a copy of summons and complaint to the door of said defendant Toribo’s last known address and by mailing said summons and complaint to the same address pursuant to the requirements of CPLR 308(4). Plaintiff is also directed to serve summons and complaint by publication. Plaintiff has 60 days to effectuate service.
Dated: 10/21/14
Signed: Hon. John A. Barone, Justice
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Summons
Index No. 806287-2013
NEW SOUTH INSURANCE COMPANY,
Plaintiff,
v.
SPRAGSTEIN TRANSPORTATION INC.,
DANIS BENTANCOURT,
GRIMALDY SILVERIO TORIBO
Defendant.
The basis of venue is the location of the Defendant’s business operations at 3578 Boston Road, Bronx, New York 10469 and the location of the accident at Jackson Avenue and Eqast 140th Street, Bronx, New York.
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complain is not served with this summons, to serve a notice of appearance, on the Plaintiff’s attorney(s) within 20 (twenty) days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint.
Dated: Florham Park, NJ
October 16, 2013
Signed by: SCHENK, PRICE, SMITH & KING LLP
Cynthia L. Flanagan, Esq.
Attorney for Plaintifs
220 Park Avenue
Florham Park, NJ 07932
Tel.: 973-539-1000
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To: Spragstein Transportation, Inc.
Samuel Miller
25 S. Main Street
Spring Valley, New York 10977-4917
Grimaly Silverio Toribo
421 Saint Lawrence Avenue
Bronx, New York 10473-3605
The Law Offices of Lloyd F. Goldstein, P.C.
57 Ira Road 382
Syosset, New York 11791
Attorney for Danis Bentancourt
Verified Complaint
Index No. 806287-2013
NEW SOUTH INSURANCE COMPANY,
Plaintiff,
v.
SPRAGSTEIN TRANSPORTATION INC.,
DANIS BENTANCOURT,
GRIMALDY SILVERIO TORIBO
Defendant.
Plaintiff, New South Insurance Company, maintaining business offices at P.O. Box 3199, Winston-Salem, North Carolina 27102-3199, by way of a declaratory complaint against the Defendants, says:
THE PARTIES
1. At all times hereinafter mentioned, plaintiff GMAC Insurance New South Insurance Company (hereinafter “Plaintiff” or “New South”) was, and still is, a corporation duly organized and existing under the laws of the State of North Carolina, with its primary place of business as P.O. Box 3199, Winston-Salem, North Carolina 27102-3199.
2. At all times hereinafter mentioned, plaintiff New South issued, through its agents, policies of insurance in the State of New York.
3. Upon information and belief, at all times hereinafter mentioned, defendant Spragstein Transportation, Inc. (“Spragstein”) was, and still is, a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York, with its principal place of business in New York at 25 S. Main Street, Spring Valley, New York 10977-4917.
4. Upon information and belief, at all times hereinafter mentioned, defendant Spragstein Transportation, Inc. was, and still is, a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York, with a principal place of business in New York at 3578 Boston Road, Bronx, New York 10469.
5. Upon information and belief, at all times hereinafter mentioned, Spragstein Transportation was and still is, doing business as Duke Rent-A-Car, Inc., with a principal place of business in New York at 3578 Boston Road, Bronx, New York 10469 location.
6. Upon information and belief, at all times hereinafter mentioned, defendant Danis Betancourt (hereinafter “Betancourt”) was, and still is, a citizen of the State of New York and resides in the County of Bronx and resides at 53 East 182nd Street, Basement Apt., 2, Bronx, New York 10453.
7. Upon information and belief, at all times hereinafter mentioned, defendant Grimaldy Silverio Toribo (hereinafter “Toribo”) was, and still is, a citizen of the State of New York and resides in the County of Bronx and resides at 421 Saint Lawrence Avenue, Bronx, New York 10473-3605.
JURISDICTION AND VENUE
8. This Court has subject matter jurisdiction over this action because the amount in dispute exceeds $25,000.
9. This Court has personal jurisdiction over the Defendants pursuant to CPLR § 301.
10. Venue is proper in this County pursuant to CPLR § 503(c) because Defendants reside in this County.
THE FACTS
The Policy
11. New South issued a policy of commercial auto insurance to Spragstein Transportation, number 2001631474, which pursuant to its terms and conditions applied from October 9, 2012 until October 9, 2013 (hereinafter the “Policy”).
12. The Policy insured certain vehicles for use in Spragstein Transportation’s grocery wholesaler business.
13. The vehicles insured under the Policy are a 2004 Pontiac Grand Prix GT (VIN 2G2WP522941184788), 2005 Pontiac Grand Prix GT (VIN 2G2WS522251148215) and a 2006 Chrysler Town and Country LX (VIN 2A4GP44R46R743098).
14. The Policy provided automobile insurance coverage to Spragstein Transportation, subject to certain terms, conditions, and exclusions.
15. The Policy excludes coverage for, inter alia, (1) bodily injury or property damage caused when an insured auto is used as a public or livery conveyance; (2) bodily injury or property damage arising out of auto business operations; (3) liability assumed under any contract or agreement.
The Alleged Accident
16. Upon information and belief, Spragstein Transportation was doing business as Duke Rent-A-Car in Bronx, New York.
17. Upon information belief, Duke Rent-A-Car is primarily in the car rental business.
18. On May 8, 2013, Betancourt rented the 2006 Chrysler Town and Country LX insured under the Policy from Duke Rent-A-Car.
19. On May 11, 2013, while operating the 2006 Chrysler Town and Country LX, Betancourt was involved in an accident with two other vehicles at the location described on the Police Accident Report as Jackson Avenue and East 140th Street, Bronx, New York.
20. Toribo was a passenger in Betancourt’s vehicle.
21. Both Betancourt and Toribo allegedly suffered injuries in the accident and filed claims for coverage under the Policy.
FIRST CAUSE OF ACTION
22. Plaintiff repeats and realleges each and every allegation contained in the complaint numbered 1-21 as if fully set forth at length herein.
23. The Policy issues to defendant Spragstein Transportation provides, in relevant part, as follows:
PART I- LIABLITY TO OTHERS
EXCLUSIONS
PLEASE READ THE EXCLUSIONS CAREFULLY. IF ANY EXCLUSION APPLIES, YOU WILL NOT HAVE COVERAGE FOR A LOSS THAT OTHERWISE WOULD BE COVERED UNDER THS POLICY.
PART I LIABLITY TO OTHERS does not apply to:
2. Any liability assumed by an insured under any contract or agreement.
5. Bodily injury or property damage arising out of auto business operations, including, but not limited to, the selling, repairing, servicing, storing or parking of autos.
11. Bodily injury or property damage caused when your insured auto is used as a public or livery conveyance. This exclusion does not apply to shared-expense car pools whose members are on the way to or from the same place of employment.
24. Under the aforementioned exclusions and other Policy provisions and exclusions the Policy issued to defendant Spragstein Transportation affords no coverage to Toribo, Betancourt any other heretofore yet unknown claimant for any occurrence(s) arising as a result of the May 11, 2013 accident.
25. New South Insurance is therefore entitled to a declaration that it is not obligated to defend or indemnify Spragstein Transportation with respect to any claims arising out of the May 11, 2013 accident.
SECOND CAUSE OF ACTION
26. Plaintiff repeats and realleges each and every allegation contained in the complaint numbered 1-25 as if fully set forth at length herein.
27. The Policy affords no coverage for claims of injunctive or other relief not seeking damages.
28. New South Insurance is therefore entitled to a declaration that it is not obligated to defend or indemnify Spragstein Transportation with respect to any claims seeking injunctive relief or relief other than damages arising out of the May 11, 2013 accident.
WHEREFORE, plaintiff New South Insurance Company prays that judgment be made and entered herein as follows:
(a) declaring that NEW SOUTH INSURANCE COMPANY is not obligated to defend Spragstein Transportation under NEW SOUTH INSURANCE COMPANY commercial auto policy number 2001631474 with respect to claims arising out of the May 11, 2013 accident involving the listed 2006 Chrysler Town and Country LX; and
(b) declaring that NEW SOUTH INSURANCE COMPANY is not obligated to indemnify Spragstein Transportation under NEW SOUTH INSURANCE COMPANY commercial auto policy number 2001631474 with respect to claims arising out of the May 11, 2013 accident involving the listed 2006 Chrysler Town and Country LX; and
(c) granting to Plaintiff such other further relief as this Court may deem just and equitable under the circumstances, together with the costs and disbursements of this action.
Dated: Florham Park, NJ
October 16, 2013
Signed by: SCHENK, PRICE, SMITH & KING LLP
Cynthia L. Flanagan, Esq.
Attorney for Plaintifs
220 Park Avenue
Florham Park, NJ 07932
Tel.: 973-539-1000
