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Decided on June 16, 2011
Supreme Court, Ulster County
Stone Ridge Country Properties, Corp., Plaintiff,
against
Mohonk Oil Company, Inc., MOHONK OIL AND PROPANE, INC.,
JAMES OWENS, W.R. BERKLEY CORPORATION, STARNET
INSURANCE COMPANY, HERITAGENERGY (NY) INC.,
HERITAGE ENERGY, INC. and HERITAGENERGY LP GAS, INC.,
Defendant.







5481/09
D'AMATO & LYNCH, LLP Attorneys for Third-Party Defendant Commerce and Industry Insurance Company Two World Financial Center New York, New York 10281 By: Neal M. Glazer, Esq. Jonathan L. Kranz, Esq. LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendants/Third-Party Plaintiffs MOHONK OIL COMPANY, INC., MOHONK OIL AND PROPANE, INC., JAMES OWENS,
W.R. BERKLEY CORPORATION and STARNET
INSURANCE COMPANY
425 Broad Hollow Road, Suite 400
Melville, New York 11747
By: Elizabeth A. Fitzpatrick, Esq.
James P. Gilpatric, J.
The third-party defendant, Commerce and Industry Insurance Company (hereinafter "Commerce") moves pursuant to CPLR 3212 for summary judgment dismissing the third-party action brought by defendants/third-party plaintiffs,Mohonk Oil Company, Inc., Mohonk Oil and Propane, Inc. (hereinafter " Mohonk"), James Owens (hereinafter " Owens") and Starnet Insurance Company (hereinafter "Starnet") (collectively, "Third-Party Plaintiffs"). The third-party plaintiffs oppose the motion.
The action arises out of the alleged discharge of fuel oil onto the property owned by the plaintiff Stone Ridge Country Properties (hereinafter "Stone Ridge") on or about November 21, 2006 by the driver of a Mohonk vehicle. In the Stone Ridge action, the plaintiff also names as defendants the insurers for Mohonk, Starnet Insurance Company and W.R. Berkley Corporation. On May 15, 2008, the defendants Heritagenergy (NY), Inc., Heritage Energy, Inc. and Heritagenergy LP Gas, Inc. (collectively, hereinafter "Heritage") entered into a merger agreement and/or asset purchase/transfer agreement with Mohonk. It is alleged that pursuant to the merger and/or asset purchase/transfer agreement , Heritage assumed the liabilities of Mohonk as successor(s)-in-interest. The plaintiff in the Stone Ridge action asserts that Heritage was liable for the damages as a result of the discharge, as the successor in interest of Mohonk. The third-party plaintiffs then commenced a third-party action against Commerce under Navigation Law

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