

Certain Underwriters at Lloyd's, London v AT&T, Corp. (2016 NY Slip Op 06255)





Certain Underwriters at Lloyd's, London v AT&T, Corp.


2016 NY Slip Op 06255


Decided on September 29, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on September 29, 2016

Mazzarelli, J.P., Acosta, Saxe, Moskowitz, Gesmer, JJ.


653090/13 1763 1762

[*1]Certain Underwriters at Lloyd's, London, et al., Plaintiffs-Respondents,
vAT & T, Corp., et al., Defendants, American Excess Insurance Association, Defendant-Appellant.


Litchfield Cavo LLP, New York (Krupa A. Shah of counsel), for appellant.
Mendes & Mount LLP, New York (Eileen Therese McCabe of counsel), for respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered December 1, 2015, which denied defendant American Excess Insurance Association's (AEIA) motion to compel arbitration, and order, same court and Justice, entered December 2, 2015, which denied AEIA's motion to dismiss the complaint as against it, unanimously affirmed, with costs.
AEIA's motion to dismiss was filed well beyond the statutory time period (CPLR 3211[e]; 3012[a]), and the record does not support AEIA's contention that the delay was due to plaintiffs' actions.
The motion to compel arbitration was correctly denied, as it cannot be said that plaintiffs, nonsignatories to the AEIA policy containing the arbitration clause that signatory AEIA seeks to enforce, "knowingly exploit[ed]" the AEIA policy or derived a "direct benefit" from it (Matter of Belzberg v Verus Invs. Holdings Inc., 21 NY3d 626, 631 [2013] [internal quotation marks omitted]; see also Matter of SSL Intl., PLC v Zook, 44 AD3d 429, 430 [1st Dept 2007]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 29, 2016
CLERK


