Plaintiffs Tower Mineola Limited Partnership (Tower Mineola LP) and Virginia Surety Company (Virginia Surety) bring this declaratory judgment action seeking, among other things, a judgment declaring that defendant Potomac Insurance Company of Illinois (Potomac) is obligated to defend and indemnify Tower Mineola LP in the underlying action entitled: Scheffler v Tower Mineola Limited Partnership (Sup Ct, Suffolk County, Index No.: 06822/02) (the Scheffler action). Plaintiffs move, pursuant to CPLR 3212, for an order granting summary judgment in their favor and declaring that Potomac has a duty to defend and indemnify Tower Mineola LP on a primary basis in the Scheffler action. Plaintiffs also seek an order declaring that Potomac must reimburse Virginia Surety for one-half of the costs it has incurred in defending Tower Mineola LP in the Scheffler action, and that Potomac must indemnify Tower Mineola LP for one-half of any settlement or judgment in the Scheffler action. Potomac cross-moves for: (1) an order, pursuant to CPLR 3212, granting summary judgment in its favor dismissing the action on the grounds that Tower Mineola LP lacks standing and/or legal capacity to sue, pursuant to various provisions of the Partnership Law, the General Business Law, the Business Corporation Law and the Tax Law; and (2) an order pursuant to CPLR 3101 and 3120 dismissing the complaint on the grounds that plaintiffs repeatedly, willfully and wantonly failed to provide necessary discovery.

Background

The Scheffler Action

The Scheffler action arises out of an accident which occurred on December 10, 2001, when plaintiff June Scheffler was employed as a licensed practical nurse by Winthrop University Hospital (Winthrop). Ms. Scheffler alleges that, on December 10, 2001, while working at Winthrop in a building located at 120 Mineola Boulevard, Mineola New York (the 120 Mineola Blvd. Building), she slipped and fell on water on the floor of a file/storage room located in Suite [*2]100 on the first floor of that building (Affirmation of Ellen M. Spindler, Esq. in Support of Plaintiffs' Motion [Spindler Aff. in Support], Ex. E [Scheffler Verified Bill of Particulars]). Ms. Scheffler contends that Tower Mineola LP, the alleged owner and landlord ^[FN1] of the portion of the 120 Mineola Blvd. Building where she fell, was negligent in its ownership, operation, maintenance and control of the premises, and that a leaking HVAC system caused her to fall. Tower Mineola LP brought a third-party action against Winthrop and Apollo HVAC corporation, the company responsible for servicing the HVAC system. Virginia Surety has incurred defense costs on behalf of Tower Mineola LP in the Scheffler action.

The Leases

The 1994 Lease

On August 1, 1994, a 10-year lease was entered into between CXX Mineola Limited Partnership (CXX Mineola LP), as landlord, and Winthrop, as tenant, (the 1994 Lease) for the use and occupancy of a portion of the 120 Mineola Blvd. Building (Affidavit of Karen Pollinger in Support of Plaintiffs' Motion [Pollinger Aff.], Ex. A [the 1994 Lease]). Plaintiffs contend that the lease covered the file/storage room of Suite 100 on the first floor of the 120 Mineola Blvd. Building, the location of the Scheffler accident (Pollinger Aff., at ¶ 4).

The 1994 Lease includes the following section regarding the tenant's duty to indemnify

the landlord:

16.Indemnification

(A)Tenant shall indemnify, defend, and save Landlord harmless from all claims, suits, actions, damages, liabilities and expenses in connection with loss of life, bodily or personnel (sic) injury or property damage occurring on or arising from or out of the use or occupancy of the Premises or any part thereof, or occasioned wholly or in part by any act, omission or negligence of Tenant or Tenant's representatives, whether occurring in or about the Premises or in the Building's common areas or elsewhere within the Building or on the Land. The foregoing indemnification shall not apply to injury, loss or damage proximately caused solely by the negligence or wilful misconduct of Landlord. This obligation to indemnify includes reasonable attorneys' fees and costs (together with such fees and costs on appeal) and investigation costs and all other reasonable costs, expenses and liabilities.

(1994 Lease, at 31 [parenthetical supplied]).

The 1994 Lease also requires the tenant (Winthrop) to obtain insurance policies naming the landlord (CXX Mineola LP) and certain other parties as additional insureds. The lease provides, in pertinent part:

17.Tenant's Insurance [*3]

(A)During the Term of this Lease or any renewal thereof, Tenant shall obtain and promptly pay all premiums for general public liability insurance against claims for personal injury, death or property damage occurring upon, on or about the Premises with carriers and in amounts reasonably satisfactory to Landlord but with minimum limits of not less than Three Million ($3,000,000) Dollars on account of bodily injuries to or death of one person and Five Million ($5,000,000) Dollars on account of bodily injuries to or death of more than one person as a result of any one accident or disaster, and Five Hundred Thousand ($500,000) Dollars on account of damage to property (or in an amount of not less than Five Million ($5,000,000) Dollars combined single limit for bodily injury and property damage), and all such policies and renewals thereof shall name Landlord, CXX Mineola Management Corp. and any other entity or party reasonably designated by Landlord as additional insureds....

(1994 Lease, at 32 [emphasis supplied]). The 1994 Lease contains the following provision regarding amendments:

43. Amendments

(A) This lease sets forth the entire agreement between Landlord and Tenant concerning the Premises, Building and Land, and no representations or promises have been made by Landlord to Tenant other than those which are in writing and contained herein. This Lease may be amended or modified only by a written instrument signed by Landlord and Tenant.

(1994 Lease, at 42).

Plaintiffs assert, based upon unsubstantiated statements in the affidavit of Karen Pollinger, a corporate paralegal employed by Reckson, that, prior to the date of the Scheffler accident in December 2001, Tower Mineola LP had allegedly assumed all of the rights of CXX Mineola LP under the 1994 Lease. Therefore, according to plaintiffs, Tower Mineola LP was the owner and lessor of the portion of the 120 Mineola Blvd. Building covered by the 1994 Lease on or before December 10, 2001. According to Pollinger, the rights that Tower Mineola LP allegedly assumed included the rights to have additional insured coverage procured on its behalf by the tenant, Winthrop, and to be named as an additional insured under Winthrop's policy, for the portion of the 120 Mineola Blvd. Building covered by the 1994 Lease (Pollinger Aff., at ¶ 5). Plaintiffs have, however, submitted no documents substantiating any assignment or other transfer of the rights of CXX Mineola LP, as the landlord under the 1994 Lease, to Tower Mineola LP.

The 1998 Lease

In September 1998 another lease was entered into between Tower Mineola LP, as landlord, and Winthrop, as tenant, with respect to a portion of the 120 Mineola Blvd. Building (Affirmation of Ellen Spindler, Esq. in Opposition to Cross Motion [Spindler Aff. in Opp.], Ex. B). Plaintiffs assert that the 1998 Lease does not cover the portion of the 120 Mineola Blvd. Building where the Scheffler accident occurred. Plaintiffs, however, have not included a complete copy of the 1998 Lease in their motion papers, nor has Potomac submitted a complete copy of this lease. Consequently, this Court cannot determine whether or not the 1998 Lease covers the portion of the 120 Mineola Blvd. Building where Ms. Scheffler fell, and what [*4]relationship, if any, existed between the 1994 Lease and the 1998 Lease.

The Relationship between CXX Mineola LP, Tower Mineola LP and Other Entities Concerning the Ownership, Leasing and Management of the 120 Mineola Blvd. Building

Plaintiffs and Potomac have submitted various documents concerning CXX Mineola LP, Tower Mineola LP and other entities, and their involvement, at various times, with the ownership, leasing and management of the 120 Mineola Blvd. Building. The documents submitted on this fragmented and incomplete record, however, fail to resolve the significant issues regarding the identity of the owner and landlord of the portion of the 120 Mineola Blvd. Building where the Scheffler accident occurred in December 2001.

Potomac has submitted a copy of a Certificate of Cancellation filed by CXX Mineola LP with the New York Department of State on May 9, 1997 (Haddad Aff. in Support, Ex. M). This Certificate of Cancellation indicates that the original certificate of limited partnership had been filed by CXX Mineola LP on January 21, 1988 (id.). The Certificate of Cancellation further states that CXX Mineola LP has been dissolved, "as a result of the bankruptcy of a general partner of the Partnership" (id.).

Potomac has also submitted documents concerning the formation and termination of Tower Mineola LP, a foreign limited partnership (Haddad Aff. in Support, Ex. L). Included is a certification from the Secretary of State of Delaware, stating that the certificate of limited partnership for Tower Mineola LP was filed in that office on May 6, 1997 and further certifying that Tower Mineola LP "is no longer in existence and good standing under the laws of the State of Delaware having filed a certificate of cancellation" on October 3, 2005 (id.). Potomac has also submitted a document entitled, "Certificate of Termination of Tower Mineola Limited Partnership Under Section 121-906 of the Revised Limited Partnership Act" (id.). The Certificate of Termination of Tower Mineola LP was filed with the New York Department of State on or about October 7, 2005 (id.).

Plaintiffs have submitted several deeds documenting the transfer of the ownership of the 120 Mineola Blvd. Building. There are two bargain and sale deeds, dated May 30, 1997 and filed on June 5, 1997 (Reply Affirmation of Ellen Spindler, Esq. [Spindler Reply Aff.], Ex. A). The first bargain and sale deed documents the transfer of the 120 Mineola Blvd. Building from an entity, Bama Equities, Inc., and a group of individuals who allegedly owned the building as tenants in common to Tower Realty Operating Partnership, LP, as grantee (id.). The second bargain and sale deed, dated and filed on the same date as the first deed, documents the transfer of the 120 Mineola Blvd. Building from two grantors which allegedly owned the building as tenants in common, Tower Realty Operating Partnership, LP (by Tower Realty Trust, Inc., as general partner) and Tower Qrs. No. 2 Corp, to Tower Mineola LP, a Delaware limited partnership (id.). The deeds submitted by plaintiffs do not, however, refer to any interest in the 120 Mineola Blvd. Building owned by CXX Mineola LP, the landlord under the 1994 Lease, nor do the deeds establish any grant or transfer of the interest owned by CXX Mineola LLP, pursuant to that lease, to Tower Mineola LP.

The relationship between CXX Mineola LP, Tower Mineola LP and the other entities is [*5]further complicated by a transaction which occurred in 1999, described in a document annexed to the Pollinger affidavit, entitled: "Reckson Associates Realty Corp. Closing Memorandum - Acquisition of Tower Realty Trust, Inc. and Related Transactions - May 24, 1999" (Pollinger Aff., Ex. B [the Reckson Closing Memorandum]). Pollinger, once again, asserts, without substantiation, that Tower Realty Trust, Inc., which was allegedly the parent company of Tower Mineola LP, was acquired in May 1999 by various entities affiliated with Reckson "in a structured merger and buy out" (Pollinger Aff., at ¶ 6). Pollinger further asserts that Reckson acquired all of the properties formerly owned by Tower Realty Trust, including the 120 Mineola Blvd. Building, and that Reckson formed two entities which acquired an ownership interest in Tower Mineola LP (id.). The Reckson Closing Memorandum, however, does not list the properties allegedly acquired by Reckson, nor does this memorandum document the relationship between Reckson and Tower Mineola LP. In addition, the Reckson Closing Memorandum does not identify Tower Mineola LP as the owner of the 120 Mineola Blvd. Building, nor does it explain how and when Tower Mineola LP acquired the rights of CXX Mineola LP, as the landlord pursuant to the 1994 Lease.

Plaintiffs have also submitted a document entitled: "Management Agreement between Reckson Operating Partnership, LP and Reckson Management Group, Inc.", dated as of January 1, 2001 (Spindler Aff. in Opp., Ex. G [Reckson Management Agreement]). Exhibit A to the Reckson Management Agreement, entitled "Description of Premises", lists the properties covered by the agreement, all of which are allegedly owned by Reckson Operating Partnership, LP or affiliated entities. Among the entities and properties covered by the Reckson Management Agreement is "Tower Mineola LP (owned by a wholly owned subsidiary of Reckson Operating Partnership LP) - 120 Mineola Blvd., Mineola,, NY" (Reckson Management Agreement, Ex. A, at 3). This indicates that there is a relationship between Tower Mineola LP and entities affiliated with Reckson. Plaintiffs, however, have failed to submit documents or other evidence in admissible form describing the precise relationship between Reckson and affiliated entities, and Tower Mineola LP, at the time of the Scheffler accident. Nor have plaintiffs submitted documents to support their assertion that Tower Mineola LP was, indeed, the landlord under the 1994 Lease for the portion of the 120 Mineola Blvd. Building where that accident occurred in December 2001.

The Insurance Policies

The Virginia Surety Policy

Virginia Surety issued a commercial general liability policy to Reckson, as the named insured, effective for a term from June 2, 2001 to June 2, 2002 (the Virginia Surety Policy). A complete copy of the Virginia Surety Policy is annexed to the affidavit of Virginia Surety underwriting consultant, John Goring (the Goring Affidavit), submitted by plaintiffs in support of their motion. The Virginia Surety Policy included a "Named Insured, Location and Mortgagee Schedule", dated November 26, 2001, designating Tower Mineola LP as an "Other Named Insured" under the policy, and identifying 120 Mineola Boulevard as a covered location (Goring Aff., Ex. B). Virginia Surety is seeking to recover from Potomac one-half of the defense costs it has incurred in defending Tower Mineola LP in the Scheffler action, and to require Potomac to pay one-half of any settlement or judgment on behalf of Tower Mineola LP, in that action.

The Potomac Policy [*6]

Potomac issued a commercial general liability policy to Winthrop, as the named insured, which was in effect on December 10, 2001, the date of the Scheffler accident (the Potomac Policy). The Potomac Policy contained an endorsement entitled, "Winthrop University Hospital Additional Insured Landlords & Mortgagees" (Spindler Aff. in Support, Ex. N). This endorsement contains the heading, "Additional Insured Mgrs or Lessors of Premises (CG2011)", under which are listed various entities, including "Tower Mineola LP c/o Reckson Assoc. Realty C__ 225 Broadhollow Rd., Melville NY 11747", for the location described as "120 Mineola Blvd., Mineola NY" (id.). Plaintiffs have submitted some portions of the Potomac Policy with their motion papers (see Spindler Aff. in Support, Ex. N), and Potomac has submitted additional provisions allegedly included in its policy, in the papers in support of its cross motion (Haddad Aff. in Support, Ex. N). However, plaintiffs assert that Potomac has failed to provide them with a complete copy of its policy, in compliance with the order of this Court, dated April 7, 2006 ^[FN2] (Spindler Aff. in Opp., Ex. C).

Discussion

1. Plaintiffs' Summary Judgment Motion

a. Coverage of Tower Mineola LLP Under the Potomac Policy, in its Capacity as Landlord for the Portion of the 120 Mineola Blvd. Building Where the Scheffler Accident Occurred

The primary threshold issue is whether Tower Mineola LP is covered under the Potomac Policy, in its capacity as the landlord for the portion of the first floor of the 120 Mineola Blvd. Building where Ms. Scheffler fell on December 10, 2001. Plaintiffs assert that they are entitled to summary judgment on this issue, as Tower Mineola LP allegedly assumed, or otherwise succeeded to, the rights of a prior limited partnership, CXX Mineola LP, under the 1994 Lease, which allegedly covered the portion of the 120 Mineola Blvd. Building where the Scheffler accident occurred.

The following general principles govern motions for summary judgment. Summary judgment is a drastic remedy, which is the procedural equivalent of trial, and should not be granted where there is any doubt as to the existence of triable issues of fact (see S.J. Capelin Assoc., Inc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Epstein v Scally, 99 AD2d 713, 714 [1st Dept 1984]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Further, in order to obtain summary judgment, the movant must "establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212 [b]) and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1063, 1067 [1979]); see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; see also Wright v C.H. Martin of White Plains Rd., Inc., [*7]23 AD3d 295 [1st Dept 2005]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form" (Zuckerman v City of New York, 49 NY2d at 562).

Plaintiffs' summary judgment motion is denied, as they have failed to present evidentiary proof in admissible form to establish, as a matter of law: (1) that Tower Mineola LP assumed or otherwise succeeded to the rights of CXX Mineola LP, as the landlord under the 1994 Lease, which allegedly covers the portion of the 120 Mineola Blvd. Building where the Scheffler accident occurred in December 2001; and (2) that Tower Mineola LP was covered under the Potomac Policy, in its capacity as the landlord of the portion of the building where Ms. Scheffler fell, in accordance with the provisions of the 1994 Lease requiring the tenant (Winthrop) to indemnify the landlord against personal injury claims and to name "Landlord, CXX Mineola Management Corp., and any other entity or party reasonably designated by Landlord as additional insureds" under certain insurance policies.

Significantly, as has been discussed above, plaintiffs have failed to submit documentary evidence establishing, as a matter of law, that CXX Mineola LP, the entity named as the landlord in the 1994 Lease, did, in fact assign or otherwise transfer its interest in that lease and in the portion of the 120 Mineola Blvd. Building allegedly covered by that lease to Tower Mineola LP. Plaintiffs assert that Tower Mineola LP assumed all of the rights of CXX Mineola LP, including the right to be named as an additional insured under insurance policies procured by the tenant, Winthrop, pursuant to Real Property Law § 223. That statute provides, in pertinent part:

§ 223 Rights where property or lease is transferred

The grantee of leased real property, or of a reversion thereof, or of any rent, the devisee or assignee of the lessor of such a lease, or the heir or personal representative of either of them, has the same remedies, by entry, action or otherwise, for the nonperformance of any agreement contained in the assigned lease for the recovery of rent, for the doing of any waste, or for other cause of forfeiture as his grantor or lessor had, or would have had, if the reversion had remained in him. A lessee of real property, his assignee or personal representative, has the same remedy against the lessor, his grantee or assignee, or the representative of either, for the breach of an agreement contained in the lease, that the lessee might have had against his immediate lessor, except a covenant against incumbrances or relating to the title or possession of the premises leased. ...

Real Property Law § 223 gives the grantee or assignee of the landlord of property the same rights and remedies against the tenant for nonperformance of the agreements contained in the lease as the original landlord would have had (see 507 Madison Ave. Realty Co. v Martin, 200 App Div 146, 152-153 [1st Dept 1922], affd mem 233 NY 683 [1922], cited in 815 Park Owners, Inc. v West LB Admin., Inc., 119 Misc 2d 671, 673 [Civ Ct, New York County 1983]). Additionally, Real Property Law § 223 gives the tenant of real property the same rights and remedies against the grantee or assignee of the landlord for breach of an agreement contained in the lease, as the tenant would have had against the original landlord. Plaintiffs have cited no cases applying Real Property Law § 223 to covenants in a lease requiring the tenant to procure [*8]insurance coverage naming the landlord as an additional insured. Even assuming, for the sake of argument, that this statute applies in such circumstances, it would only provide the grantee or assignee of the original landlord with a remedy against the tenant, in this case Winthrop, for breach of the lease provision requiring the tenant to procure the appropriate insurance coverage naming the landlord as an additional insured. Real Property Law § 223 does not, however, provide any rights or remedies to Tower Mineola LP, alleged by plaintiffs to be the grantee or assignee of the rights of CXX Mineola LP as landlord under the 1994 Lease, against Potomac, as the insurer of the tenant, Winthrop.

As has been emphasized previously, plaintiffs have failed to support their motion with evidentiary proof in admissible form sufficient to establish, as a matter of law, that CXX Mineola LP, the named landlord in the 1994 Lease, did, in fact, assign or otherwise transfer its interest in that lease and in the portion of the 120 Mineola Blvd. Building allegedly covered by that lease to Tower Mineola LP. Further, plaintiffs have failed to present evidentiary proof in admissible form establishing that Tower Mineola LP was a "party reasonably designated by" CXX Mineola LP to be named as an additional insured in the insurance policies procured by the tenant, Winthrop, pursuant to the 1994 Lease. Plaintiffs have submitted no documents establishing any grant or transfer by CXX Mineola LP of its rights under the 1994 Lease to Tower Mineola LP. In fact, the documents submitted by plaintiffs in support of their motion, and by Potomac in support of its cross motion, only give rise to questions of fact as to the exact nature of the complicated relationships between CXX Mineola LP, Tower Mineola LP, Reckson and other entities with respect to the ownership and leasing of the 120 Mineola Blvd. Building at the time of the Scheffler accident. For example, the documents submitted by Potomac indicate that CXX Mineola LP was terminated as a New York domestic limited partnership on or before May 9, 1997, only three days after May 6, 1997, when Tower Mineola LP filed a certificate of limited partnership with the Delaware Secretary of State (Haddad Aff. in Support, Exs. L and M).

The only support for plaintiffs' position are the unsubstantiated assertions of Karen Pollinger, who identifies herself as a "corporate paralegal" for Reckson, a non-party to this action (Pollinger Aff., at ¶ 1). Ms. Pollinger asserts, without documentation or other support for her purported "personal knowledge" of the statements in her affidavit, that, at some time prior to the December 2001 accident, Tower Mineola LP had "assumed", or had otherwise succeeded to, the rights of CXX Mineola LP under the 1994 Lease, with respect to the use and occupancy of the portion of the 120 Mineola Blvd. Building where Ms. Scheffler fell (Pollinger Aff., at ¶ ¶ 5-7). Plaintiffs cite no cases allowing unsubstantiated assertions in affidavits by paralegals or legal assistants to be submitted in support of a summary judgment motion. Indeed, such evidence is clearly insufficient, in view of the principle that the conclusory assertions in the affirmation of an attorney, who fails to demonstrate personal knowledge of the facts, does not constitute "evidentiary proof in admissible form" which can be submitted in support of or in opposition to a summary judgment motion (Zuckerman v City of New York, 49 NY2d at 563; Johannsen v Rudolph, 34 AD3d 338 [1st Dept 2006]). An attorney's affirmation can, of course, serve as the vehicle for submission of documents "which do provide evidentiary proof in admissible form'" (Zuckerman, 49 NY2d at 563). The same may be true for an affidavit by a paralegal or legal assistant, submitted solely as the custodian of documents and records maintained in the regular course of business. A paralegal may not, however, interpret the contents of documents, nor may [*9]he or she attest to facts without a basis for personal knowledge. Accordingly, this Court will not consider the statements made by Karen Pollinger in her affidavit concerning the alleged relationship between CXX Mineola LP, Tower Mineola LP, Reckson and other entities.

In view of plaintiffs' failure to establish, as a matter of law, that, at the time of the accident, Tower Mineola LP was the landlord under the 1994 Lease, there are, likewise triable issues of fact as to whether the Potomac Policy covered Tower Mineola LP, in its capacity as the landlord for the portion of the premises where Ms. Scheffler fell. The existence of coverage under the Potomac Policy depends upon whether Tower Mineola LP was the landlord, under the 1994 Lease, for the area of the 120 Mineola Blvd. Building where the accident occurred.

As was noted above, the Potomac Policy contained an endorsement, entitled "Winthrop University Hospital Additional Insured Landlords & Mortgagees" (Spindler Aff. in Support, Ex. N). Under the heading, "Additional Insured Mgrs or Lessors of Premises (CG2011)", are listed various entities, including "Tower Mineola LP c/o Reckson Assoc. Realty C__", for the location identified as "120 Mineola Blvd., Mineola NY" (id.). The reference to "CG2011" in Potomac's endorsement appears to refer to standard ISO ^[FN3] policy form number CG 20 11 01 96, entitled "Additional Insured - Managers or Lessors of Premises", which provides, in pertinent part:

WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule and subject to the following additional exclusions:

This insurance does not apply to:

1. Any "occurrence" which takes place after you cease to be a tenant

in that premises.

2. Structural alterations, new construction or demolition operations

performed by or on behalf of the person or organization shown in the

Schedule.

(Spindler Aff. in Opp., Ex. E [emphasis supplied]).

Potomac asserts, that based upon the language of this endorsement, the coverage under its policy for Tower Mineola LP is limited to the portion of the 120 Mineola Blvd. Building

Tower leased to Winthrop at the time of the December 2001 accident ^[FN4]. The language of the endorsement appears to support Potomac's interpretation. The complete form number CG 20 11 [*10]01 96 only appears in the Virginia Surety Policy (Goring Aff., Ex. A). The "Schedule of Forms and Endorsements" in the portions of the Potomac Policy submitted by plaintiffs, however, contains the handwritten notation "CG 20 11", apparently referring to the "Additional Insured - Managers or Lessors of Premises" endorsement (Spindler Aff. in Support, Ex. N). In addition, the Potomac Policy's "Winthrop University Hospital Additional Insured Landlords and Mortgagees" endorsement also refers to "CG2011", strongly suggesting that this form is included in the Potomac Policy (id.). It is, however, not possible to verify whether the "Additional Insured - Managers or Lessors of Premises" (form CG 20 11 01 96) was, in fact, included in the Potomac Policy until Potomac complies with the April 2006 order of this Court directing Potomac to produce a complete copy of its policy, including complete copies of all included forms and endorsements.

Potomac further asserts that its policy does not automatically cover predecessors or successors of covered limited partnerships, unless they are specifically listed in the policy. In support of this argument, Potomac refers to the following language in form CG 00 01 01 96 (p 8 of 13): "No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations" (Haddad Aff. in Support, Ex. N). Once again, without a complete copy of the Potomac Policy, it is not possible for this Court to determine whether, in fact, this form was included in the policy.

In conclusion, based upon the incomplete and fragmented record presented by both parties, there are significant triable issues of fact which require the denial of plaintiffs' summary judgment motion. For example, there is a triable issue of fact as to whether, at the time of the Scheffler accident, Tower Mineola LP had assumed, or had been assigned, the rights of CXX Mineola LP under the 1994 Lease, which allegedly covered the portion of the 120 Mineola Blvd. Building where the accident occurred. There is also a triable issue of fact as to whether the Potomac Policy covered Tower Mineola LP, with respect to the location of the Scheffler accident, which was allegedly included under the 1994 Lease, but not under the 1998 Lease. It must be emphasized that this Court should not be burdened by the laborious task of piecing together the fragments of a puzzle, due to the failure of the parties to submit a simple, coherent and complete record in support of the motion and cross motion.

b. Potomac's Challenges to Other Evidence Submitted by Plaintiffs

Potomac asserts that the affidavit of Virginia Surety underwriting consultant John Goring does not constitute "evidence in admissible form", which may be submitted in support of a summary judgment motion. Goring's role as an underwriting consultant for Virginia Surety, however, provides sufficient basis for him to set forth the basis for his personal knowledge that the copy of the Virginia Surety Policy annexed to his affidavit is complete and correct. In addition, Potomac avers that Goring's affidavit is notarized by an out-of-state notary

without certification and is in violation of the CPLR.

CPLR 2309 (c) states:

c. Oaths and affirmations taken without the state:

An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been [*11]acknowledged before the officer who administered the oath or affirmation.

Oaths taken outside of New York, which are sought to be utilized in New York litigation, yet lack authentication of the oath giver's authority, can be rejected. However, "the courts are not rigid about the requirement, and, as long as the oath was duly given, the authentication of the oath giver's authority can be secured later and given nunc pro tunc effect if need be" (Siegel,

Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B CPLR C2309:3). Here,

the Goring affidavit is notarized with an official seal of a notary public of the state of Illinois and

the validity of the documents attached to the affidavit have not been challenged.

Potomac also objects to the reply affirmation of plaintiffs' attorney, Ellen M. Spindler, Esq., arguing that this affirmation cannot be used to introduce evidence that should have been included in the moving papers. Exhibit A of Spindler's affirmation includes copies of deeds reflecting Tower Mineola LP's ownership of the 120 Mineola Blvd. Building, which Potomac contends it had not previously received. Exhibit B consists of two affidavits of service demonstrating proof of publication of the filing of Tower Mineola LP's certificate of authority in compliance with Partnership Law § 121-201, which Potomac alleged were not properly filed. Both exhibits were properly submitted by plaintiffs' attorney in response to Potomac's opposition, and the attorney's reply affirmation is the appropriate vehicle for submitting these relevant documents (see Zuckerman v City of New York, 49 NY2d at 563).

Lastly, Potomac asserts that this Court should not consider the deposition transcripts of Ms. Scheffler and the other witnesses in the underlying Scheffler action, submitted by plaintiffs in support of their summary judgment motion. According to Potomac, the deposition transcripts may not be considered as evidentiary proof in support of the motion, as plaintiffs have failed to demonstrate that the transcripts were sent to the witnesses to be signed and notarized, and that the witnesses have reviewed, signed and notarized the transcripts (see CPLR 3116[a]). The Appellate Division, First Department has concluded, however, that deposition transcripts may be submitted in support of a motion for summary judgment, and other motions, even if the transcripts are unsigned, so long as they are certified as accurate by the court reporter, which is the case with the transcripts submitted by plaintiffs in the instant matter (see White Knight Ltd. v Shea, 10 AD3d 567 [1st Dept 2004]; Morchik v Trinity School, 257 AD2d 534, 536 [1st Dept 1999]; Zabri v City of New York, 242 AD2d 15, 17 [1st Dept 1998]). Moreover, the deposition transcripts submitted by plaintiffs were only used to establish background facts from the Scheffler action, and are, thus, tangential to insurance coverage issues in the instant declaratory judgment action. Accordingly, there is no error for this Court to consider the deposition transcripts from the Scheffler action submitted by plaintiffs, for the limited purpose of establishing background facts concerning that matter.

c. Potomac's Late Notice Defense

In further opposition to plaintiffs' motion for summary judgment, Potomac asserts that plaintiffs failed to provide it with timely and proper notice of the Scheffler accident and lawsuit. Plaintiffs assert that they provided timely and adequate notice in a letter dated December 23, 2004, from the claims administrator for Virginia Surety to One Beacon, Potomac's successor (Spindler Aff. in Opp., Ex. H). In this letter, Virginia Surety provides One Beacon with notice of [*12]the Scheffler accident and lawsuit, and tenders to One Beacon the defense and indemnification of Tower Mineola LP in the Scheffler action, citing the contractual indemnification and insurance procurement provisions of the 1994 Lease (id.). Plaintiffs do not, however, explain why Virginia Surety delayed in notifying One Beacon of the claim, more than three years after the Scheffler accident and more than two years after the Scheffler action was commenced, some time in 2002.

Instead, plaintiffs assert that Potomac waived its right to assert the defense of late notice by its unreasonable and unexplained delay in disclaiming coverage on this ground. Plaintiffs cite decisions construing Insurance Law § 3420 (d), requiring an insurer presented with a claim "for death or bodily injury arising out of a motor vehicle accident or any other type of accident occurring in this state" to "give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant."

On or about June 7, 2005, plaintiffs first served Potomac with the amended summons and complaint in the instant declaratory judgment action. Potomac served its answer to plaintiffs' second amended complaint on or about January 27, 2006, in which it first asserted the affirmative defense of late notice (Schindler Aff. in Support, Ex. B). Potomac's answer, in effect, constitutes a disclaimer on the grounds of late notice. Accordingly, Potomac delayed in notifying plaintiffs of its disclaimer based upon late notice for approximately 13 months, assuming that Potomac was first notified of the Scheffler claim by the December 2004 letter. At the very minimum, Potomac delayed in issuing its disclaimer for approximately seven months, if the declaratory judgment action provided Potomac with its first notice of this claim. Potomac s attorney asserts that the company's successor, One Beacon, did not receive the December 23, 2004 letter from Virginia Surety providing notice of the Scheffler accident and action, despite the fact that it was sent certified mail, return receipt requested. Potomac has, however, failed to provide an affidavit from an individual with personal knowledge of the non-receipt to the December 2004 letter. Even assuming, for the sake of argument, however, that Potomac can demonstrate that it did not receive Virginia Surety's letter, it still delayed approximately seven months in asserting the defense of late notice, after plaintiffs commenced the instant declaratory judgment action, seeking contribution from Potomac for the defense and indemnification of Tower Mineola LP in the Scheffler action.

The parties do not mention, however, the recent decisions by the Appellate Division, First Department concluding that the disclaimer requirement in Insurance Law § 3420(d) applies only to the insured, the injured party and any other claimant. The disclaimer requirement does not, however, apply to another insurer seeking contribution from a co-insurer for the defense and indemnification of an alleged joint insured, in this case Tower Mineola LP (see Sixty Sutton Corp. v Illinois Union Ins. Co., 34 AD3d 386 [1st Dept 2006]; Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co., 27 AD3d 84, 90-94 [1st Dept 2005]; AIU Ins. Co. v Investors Ins. Co., 17 AD3d 259, 260 [1st Dept 2005]). In this case, notice of the claim was allegedly given to Potomac's successor by Virginia Surety, the real party in interest in this declaratory judgment [*13]action ^[FN5], seeking to recover from Potomac, an alleged co-insurer, the costs of defending and indemnifying an alleged joint insured, Tower Mineola LP, in connection with the Scheffler action. Accordingly, Virginia Surety, an insurer seeking contribution for defense and indemnification costs, cannot assert that Potomac unreasonably delayed in disclaiming coverage on the grounds of late notice.

Finally, even assuming, for the sake of argument, that the disclaimer provisions of Insurance Law § 3420 (d) apply to Virginia Surety's claim in this action, a disclaimer is not required with respect to the primary issue in this matter, whether the Potomac Policy provided coverage for Tower Mineola LP as an additional insured, in its capacity as the landlord of the portion of the 120 Mineola Blvd. Building where the Scheffler accident occurred (see Matter of Worcester Ins. Co. v Bettenhauser, 93 NY2d 185, 188-189 [2000]; Zappone v Home Ins. Co., 55 NY2d 131, 138-139 [1982]; National Union Fire Ins. Co. of Pittsburgh, Pa. v Utica First Ins. Co., 6 AD3d 681, 682 [1st Dept 2004]). Accordingly, the existence of a triable issue of fact as to whether Virginia Surety failed to timely notify Potomac's successor of the Scheffler accident and lawsuit provides an additional basis for denying plaintiffs' summary judgment motion.

d. Whether Potomac Policy is Primary or Excess in Relation to Virginia Surety Policy, and the Amount of Potomac's Contribution to the Defense and Indemnification of Tower Mineola LP

Plaintiffs assert, in their summary judgment motion, that Potomac is obligated to defend and indemnify Tower Mineola LP on a primary basis in the Scheffler action. They further assert that Potomac must reimburse Virginia Surety for one-half of the costs it has incurred in defending Tower Mineola LP in that action and must contribute one-half of the costs of indemnification for any settlement or judgment. This Court need not reach this issue, in view of the triable issues of fact discussed above concerning whether, indeed, the Potomac Policy covered Tower Mineola LP in its capacity as landlord for the portion of the premises where the accident occurred, and whether plaintiffs complied with the notice conditions in the Potomac Policy.

2. Potomac's Cross Motion for Summary Judgment

a. Tower Mineola LP's Legal Capacity and Standing to Maintain this Action

Potomac cross-moves for summary judgment, to dismiss Tower Mineola LP as a plaintiff in this action, on the grounds that this entity lacks the legal capacity and/or the standing to maintain this action pursuant to various provisions of the Business Corporation Law, the General Business Law, the Partnership Law and the Tax Law.

The Partnership Law applies in this case, as Tower Mineola LP is a foreign limited partnership. As has been noted above, Potomac has submitted copies of official documents concerning the formation and termination of Tower Mineola LP. A certification from the Secretary of State of Delaware states that the certificate of limited partnership for Tower Mineola LP was received and filed on May 6, 1997, and further certifies "that the aforesaid limited [*14]partnership is no longer in existence and good standing under the laws of the State of Delaware having filed a certificate of cancellation" on October 3, 2005 (Haddad Aff. in Support, Ex. L). Potomac has submitted another document entitled, "Certificate of Termination of Tower Mineola Limited Partnership Under Section 121-906 of the Revised Limited Partnership Act", which was filed with the New York Department of State on or about October 7, 2005 (id.).

Section 121- 906 of the Partnership Law provides, in pertinent part:

§ 121-906. Termination of Existence

When a foreign limited partnership which has received a certificate of authority isdissolved or its authority to conduct its business or existence is otherwise terminated or cancelled in the jurisdiction of its organization or when such foreign limited partnership is merged into or consolidated with another foreign limited partnership, (i) a certificate of the secretary of state, or official performing the equivalent function as to limited partnership records, in the jurisdiction of organization of such limited partnership attesting to the occurrence of any such event, ... shall be delivered to the department of state. The filing of the certificate, order or decree shall have the same effect as the filing of a certificate of surrender of authority under section 121-905 of this article ^[FN6]. The secretary of state shall continue as agent of the foreign limited partnership upon whom process against it may be served in the manner set forth in section 121-109 of this article, in any action or proceeding based upon any liability or obligation incurred by the foreign limited partnership within this state prior to the filing of such certificate, order or decree.

Section 121-907 of the Partnership Law provides, in pertinent part:

§ 121-907. Doing business without certificate of authority.

(a) A foreign limited partnership doing business in this state without having received a certificate of authority to do business in this state may not maintain any action, suit or special proceeding in any court in this state unless and until such partnership shall have received a certificate of authority in this state.

(b) The failure of a foreign limited partnership that is doing business in this state to comply with the provisions of this article does not impair the validity of any contract or act of the foreign limited partnership or prevent the foreign limited partnership from defending any action or special proceeding in any court of this state.

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(d) A foreign limited partnership by doing business in this state without authority appoints the secretary of state as its agent for service of process with respect to causes of action arising out of doing business in this state. In any such case, process against such foreign limited partnership may be served upon the secretary of state in the manner set forth in section 121-109 of this article.

The copies of official documents filed with the Departments of State of Delaware and New York, submitted by Potomac in support of its cross motion, establish that, as of October 3, 2005, Tower Mineola LP terminated its legal existence in the State of Delaware, where it had been formed, and that a certificate of termination of Tower Mineola LP was filed on or about October 7, 2005 with the New York Department of State (Haddad Aff. in Support, Ex. L). In opposition to Potomac's cross motion, plaintiffs fail to submit copies of any official documents or any sworn statements by individuals with personal knowledge of the facts, to establish that Tower Mineola LP had any legal existence after it was legally terminated as a foreign limited partnership in early October 2005, after the instant declaratory judgment action was commenced. The cases cited by plaintiffs, standing for the proposition that a discharge in bankruptcy does not prohibit a plaintiff in a pre-existing tort action from proceeding against the discharged debtor solely to recover the proceeds of the debtor's insurance policy, do not deal with the legal capacity of Tower Mineola LP, a foreign limited partnership which has been terminated, to maintain this action as a plaintiff (see, e.g. Green v Welsh, 956 F2d 30, 33-35 [2d Cir 1992]; Matter of Jet Florida Sys., Inc., 883 F2d 970 [11th Cir 1988]; Minafri v United Artists Theatres, Inc., 5 Misc 3d 474, 476-478 [Sup Ct, Westchester County 2004]).

Accordingly, this Court grants Potomac's cross motion for summary judgment, in part, to the extent of dismissing Tower Mineola LP as a party plaintiff in this action, as this entity lacks a legal existence and, hence, lacks the legal capacity to maintain this action ^[FN7]. It must be emphasized, however, that this ruling does not affect the capacity or standing of Virginia Surety, as the real party in interest, to maintain the instant declaratory judgment action to recover from Potomac the costs of defending and indemnifying Tower Mineola LP in the Scheffler action.

b. Plaintiffs' alleged Willful Failure to Comply with Potomac's Discovery Demands

Potomac seeks an order dismissing plaintiffs' complaint pursuant to CPLR 3101 and 3120, due to their alleged willful and repeated failure to provide necessary discovery. Potomac asserts that plaintiffs have failed to provide the following documents in response to its demands: i) a certified copy of the deed for the 120 Mineola Blvd. Building showing which entity actually owns it; ii) a certified copy of the alleged lease upon which plaintiffs rely for this action; iii) a certified copy of the agreement between the owner of the premises and the building manager; iv) [*16]the agreements between owner/property manager and the HVAC contractor responsible for the leak; v) the pleadings in the underlying Scheffler action; vi) a certified copy of the insurance policy of Tower Mineola LP, or an affidavit that none exists; vii) a deed and title search proving ownership of the 120 Mineola Blvd. Building; viii) a policy or subrogation agreement between CXX Mineola LP and Virginia Surety showing that Virginia Surety is a subrogee for CXX; and ix) a certified copy of a policy, subrogation receipt, and evidence of payments made by Virginia Surety on behalf of Tower Mineola LP, other than those voluntarily made, to show that Virginia Surety is a valid subrogee of Tower Mineola LP (Haddad Aff. in Support, at ¶ 8).

This Court concludes that dismissal of this action is not warranted, as plaintiffs have produced many of the documents listed above. For example, plaintiffs have produced: a copy of a title search for the 120 Mineola Blvd. Building, containing copies of various bargain and sale deeds for this property (Spindler Reply Aff., Ex. A, responsive to items i) and vii), above); a copy of the 1994 Lease, upon which they rely in this action (Pollinger Aff., Ex. A, responsive to item ii), above; a copy of the Reckson Management Agreement governing the management of the 120 Mineola Blvd. Building, responsive to item iii) above; a complete copy of the Virginia Surety Policy, which covers Tower Mineola LP, responsive to item vi), above (Goring Aff., Exs. A and B), and the pleadings in the underlying Scheffler action, responsive to item v), above.

It is also significant that there are discovery motions in this matter which remain outstanding, and which have been assigned to a Special Referee. Finally, as has been discussed above, this Court has emphasized that the failure of both parties to submit complete copies of significant documents has hampered this Court's ability to render a decision on plaintiffs' motion. For example, plaintiffs have failed to submit a complete copy of the 1998 Lease and any documents evincing an assignment or transfer of the rights of CXX Mineola LP under the 1994 Lease to Tower Mineola LP. Potomac has failed to submit a complete, certified copy of its policy.

Accordingly, it is

ORDERED that the motion of plaintiffs Tower Mineola Limited Partnership and Virginia Surety Company for summary judgment is denied; and it is further

ORDERED that the cross motion of defendant Potomac Insurance Company of Illinois for summary judgment and to dismiss the complaint is granted, to the extent of dismissing Tower Mineola LP as a party plaintiff, and the Clerk shall enter judgment dismissing Tower Mineola LP as a party plaintiff and amending the caption of this action to reflect this, and defendant's cross motion is otherwise denied and the remainder of this action shall continue; and it is further

ORDERED that, within 30 days of entry, defendant Potomac shall serve a copy of this decision and order, together with notice of entry, upon all parties to this action, the New York County Clerk's Office and the Clerk of the Trial Support Office, both of whom are located in 60 Centre Street, New York, New York, and who are directed to amend their records to reflect the above.

This constitutes the decision and order of the Court.

DATED:__________________ENTER:

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