Opinion
13309 Index No. 651944/17 Case No. 2020-03057
03-09-2021
388 REALTY OWNER LLC, et al., Plaintiffs-Respondents, v. AMTRUST INTERNATIONAL UNDERWRITERS LIMITED, Defendant-Appellant.
Kennedys CMK LLP, New York ( Max W. Gershweir of counsel), for appellant. White & McSpedon, P.C., New York ( Joseph W. Sands of counsel), for respondents.
Kennedys CMK LLP, New York ( Max W. Gershweir of counsel), for appellant.
White & McSpedon, P.C., New York ( Joseph W. Sands of counsel), for respondents.
Manzanet–Daniels, J.P., Kapnick, Kennedy, Shulman, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered May 11, 2020, which, upon reargument, adhered to the prior denial of defendant's motion for summary judgment and grant of plaintiffs’ cross motion for summary judgment to the extent of declaring that defendant has a duty to defend plaintiffs in the underlying action, unanimously affirmed, with costs.
Defendant failed to demonstrate that it is possible to reconcile the conflicting provisions of the governing documents, i.e., the rider to the "Task Order," which defendant argues shows that its named insureds were not required to name plaintiffs as additional insureds, and the provisions of other documents that require that plaintiffs be named as additional insureds ( see NFL Enters. LLC v. Comcast Cable Communications, LLC, 51 A.D.3d 52, 61, 851 N.Y.S.2d 551 [1st Dept. 2008] ; Lenart Realty Corp. v. Petroleum Tank Cleaners, Ltd., 116 A.D.3d 536, 537, 984 N.Y.S.2d 40 [1st Dept. 2014] ).
Defendant failed to address plaintiffs’ argument that they are entitled to a defense based on an insurer's duty to defend where the allegations in the underlying complaint suggest a reasonable possibility of coverage, and improperly advanced a new argument in its motion for reargument ( see Foley v. Roche, 68 A.D.2d 558, 567–568, 418 N.Y.S.2d 588 [1st Dept. 1979] ; see also Matter of Setters v. Al Props. & Devs. [USA] Corp., 139 A.D.3d 492, 492, 32 N.Y.S.3d 87 [1st Dept. 2016] ). Nor is CPLR 5019(a) a proper vehicle for seeking changes to a prior order that would affect a substantial right of a party ( Johnson v. Societe Generale S.A., 94 A.D.3d 663, 664, 943 N.Y.S.2d 74 [1st Dept. 2012] ).