Accordingly, pursuant to the subcontract, Premier procured a CGL policy from Merchants. Merchants has a duty to defend ACC as an additional insured because there is a reasonable possibility, based on the allegations in the underlying complaint, that the injury to the underlying plaintiff was caused by the acts or omissions of Premier, to which the policy was issued in connection with its ongoing operations (seeAllied World Assur. Co. [U.S.] Inc. v. Aspen Specialty Ins. Co., 192 A.D.3d 449, 450, 139 N.Y.S.3d 816 [1st Dept. 2021] ; AB Green Gansevoort, LLC v. Peter Scalamandre & Sons, Inc., 102 A.D.3d 425, 426, 961 N.Y.S.2d 3 [1st Dept. 2013] ). Furthermore, in light of the Merchants policy language specifically providing that it is primary and noncontributory for any additional insured, ACC, as an additional insured, is entitled to receive primary coverage from Merchants (seePecker Iron Works of N.Y. v. Traveler's Ins. Co., 99 N.Y.2d 391, 394, 756 N.Y.S.2d 822, 786 N.E.2d 863 [2003] ).

Accordingly, pursuant to the subcontract, Premier procured a CGL policy from Merchants. Merchants has a duty to defend ACC as an additional insured because there is a reasonable possibility, based on the allegations in the underlying complaint, that the injury to the underlying plaintiff was caused by the acts or omissions of Premier, to which the policy was issued in connection with its ongoing operations (see Allied World Assur. Co. [U.S.] Inc. v Aspen Specialty Ins. Co., 192 A.D.3d 449, 450 [1st Dept 2021]; AB Green Ganesvoort, LLC v Peter Scalamandre & Sons, Inc., 102 A.D.3d 425, 426 [1st Dept 2013]). Furthermore, in light of the Merchants policy language specifically providing that it is primary and noncontributory for any additional insured, ACC, as an additional insured, is entitled to receive primary coverage from Merchants (see Pecker Iron Works of N.Y. v Travelers Ins. Co., 99 N.Y.2d 391, 394 [2003]).

"[A]n insurer will be called upon to provide a defense whenever the allegations of the complaint suggest.. .a reasonable possibility of coverage" (W & W Glass Sys., Inc. v Admiral Ins. Co., 91 A.D.3d 530, 531 [1st Dept 2012], quoting BP A.C. Corp, v One Beacon Ins. Group, 8 N.Y.3d 708, 714 [2007]). The duty to defend the additional insured exists where there is "a reasonable possibility based on the allegations in the underlying complaint, that the underlying injury was caused, in whole or in part, by the acts or omissions of the subcontractors to which the policies were issued in connection with their ongoing operations" and, therefore, coverage "was implicated under the policies" (Allied World Assur. Co. (U.S.) Inc. v Aspen Specialty Ins. Co., 192 A.D.3d 449, 450 [1st Dept 2021] [internal citations omitted]). Further, "the merits of the complaint are irrelevant and, [a]n insured's right to be accorded legal representation is a contractual right and consideration upon which [a person's] premium is in part predicated, and this right exists even if debatable theories are alleged in the pleading against the insured" (BP A.C. Corp., 8 N.Y.3d at 714 [internal quotation marks and citation omitted]). "[A]dditional insured coverage is not contingent upon a liability finding" and the insurer's obligation "to provide a defense to an additional named insured under the policy exists to the same extent as it does to a named insured" (BP A.C. Corp., 8 N.Y.3d at 711).

These factual allegations, together with the third-party complaint brought in the underlying Su Action by plaintiffs herein against ED, alleging that ED was negligent, and seeking indemnification from ED, are sufficient to trigger Traveler's obligation to defend Omnibuild and 16 East. See Allied World Assurance Co. (U.S.) Inc. v Aspen Specialty Ins. Co., 192 A.D.3d 449, 450 (1st Dept. 2021); All State Interior Demolition Inc. v Scottsdale Ins. Co., 168 A.D.3d 612, 613 (1st Dept. 2019).

Contrary to Colony's contention, these allegations suggested a reasonable possibility of coverage (see Mt. Hawley Ins. Co. v American States Ins. Co., 168 A.D.3d 558, 559 [1st Dept 2019]; Indian Harbor Ins. Co. v Alma Tower, LLC, 165 A.D.3d 549, 549 [1st Dept 2018That all claims against Kingstone in the Gamez Action have been dismissed does not bear on Colony's duty to defend (see Allied World Assur. Co. (U.S.) Inc. v Aspen Specialty Ins. Co., 192 A.D.3d 449, 450 [1st Dept 2021] [reasoning that "[t]he fact that the allegations against the subcontractors were debatable and later dismissed by directed verdict is irrelevant to whether the duty to defend arose at the time the complaint was tendered"]). Moreover, the Colony Primary Policy stated that it would provide primary insurance to any party with whom Kingstone had a contract (see ACC Constr. Corp. v. Merchants Mut. Ins. Co., 200 A.D.3d 551, 552 [1st Dept 2021]).

Accordingly, pursuant to the subcontract, Premier procured a CGL policy from Merchants. Merchants has a duty to defend ACC as an additional insured because there is a reasonable possibility, based on the allegations in the underlying complaint, that the injury to the underlying plaintiff was caused by the acts or omissions of Premier, to which the policy was issued in connection with its ongoing operations (see Allied World Assur. Co. [U.S.] Inc. v Aspen Specialty Ins. Co., 192 A.D.3d 449, 450 [1st Dept 2021]; AB Green Ganesvoort, LLC v Peter Scalamandre & Sons, Inc., 102 A.D.3d 425, 426 [1st Dept 2013]). Furthermore, in light of the Merchants policy language specifically providing that it is primary and noncontributory for any additional insured, ACC, as an additional insured, is entitled to receive primary coverage from Merchants (see Pecker Iron Works of N.Y. v Travelers Ins. Co., 99 N.Y.2d 391, 394 [2003]).