USM Asset Trust Series-7 v. Colony Insurance Company ( 2020 )

USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT a □□ SOUTHERN DISTRICT OF NEW YORK DATE FILED: 12/15/2020 □ USM ASSET TRUST SERIES-7, Plaintiff, 20-CV-1077 (BCM) -against- ORDER COLONY INS. CO., et al., Defendants. BARBARA MOSES, United States Magistrate Judge. For the reasons discussed in more detail on the record during the December 15, 2020 conference, the Court concludes that plaintiff USM Asset Trust Series-7 (USM) has failed to identify any relevant ambiguity on the face of any contact at issue in this action. Contrary to USM's contention (Dkt. No. 26, at 2), the "position" of defendant Colony Ins. Co. (Colony) as set forth in its summary judgment papers — namely, that "there is no written contract that requires [defendant] Empire [HD, Inc.] to name USM as an additional insured under its insurance policies” (Dkt. No. 23-1, at 1) — cannot "create[] potential ambiguities” in those insurance policies, or in the underlying Trade Contract between Empire and non-party Dixon Projects LLC. See Greenfield v. Philles Records, Inc., 98 N.Y .2d 562, 569-70 (2002) ("Extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous, which is an issue of law for the courts to decide"); Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 13 N.Y.3d 398, 404 (2009) (quoting Kass v. Kass, 91 N.Y.2d 554, 566 (1998)) ("Ambiguity is determined by looking within the four corners of the document, not to outside sources[.]"); accord Citibank, N.A. v. Jacobsen, 2020 WL 7046841, at * 4 (S.D.N.Y. Dec. 1. 2020) (citing Greenfield and Kass). Accordingly, plaintiff's request to conduct wide-ranging discovery as to the intent of the parties to the contracts, prior to responding to Colony's summary judgment motion, is DENIED. Nothing in this Order prevents plaintiff from renewing the argument in its summary judgment opposition papers, nor from supporting that argument with affidavits or other extrinsic evidence that it can obtain without discovery. Plaintiff's papers in opposition to Colony's summary judgment motion shall be submitted no later than January 15, 2021. Colony's reply papers, if any, shall be submitted no later than January 29, 2021. Dated: New York, New York December 15, 2020 SO ORDERED. BARBARA MOSES United States Magistrate Judge