Opinion
Index No. 651675/2022
10-10-2023
Catlin Insurance Company, SANDY CLARKSON LLC, and MCALPINE CONTRACTING CO., Plaintiffs, v. Colony Insurance Company and KINGSTONE BUILDERS INC., Defendants.
Rubin, Fiorella, Friedman & Mercante, LLP, New York, NY (Aaron F. Fishbein of counsel), for plaintiffs. Farber Brocks & Zane L.L.P., Garden City, NY (Joseph K. Poe of counsel), for defendant Colony Insurance Company. No appearance for defendant Kingstone Builders Inc.
Unpublished Opinion
Rubin, Fiorella, Friedman & Mercante, LLP, New York, NY (Aaron F. Fishbein of counsel), for plaintiffs.
Farber Brocks & Zane L.L.P., Garden City, NY (Joseph K. Poe of counsel), for defendant Colony Insurance Company.
No appearance for defendant Kingstone Builders Inc.
Gerald Lebovits, J.
This is an insurance-coverage action. Plaintiffs, Catlin Insurance Company, Sandy Clarkson LLC, and McAlpine Contracting Co., move under CPLR 3212 for summary judgment declaring that (1) Colony has a duty to defend Sandy Clarkson and McAlpine in a underlying personal-injury action captioned Gamez v Sandy Clarkson LLC, Sup Ct, Bronx County, Index No. 28003/2017E (the Gamez Action); and (2) the coverage afforded by Colony to Sandy Clarkson and McAlpine applies before the coverage afforded to them under their Catlin policy.
Colony cross-moves under CPLR 3212 for summary judgment dismissing the complaint, and for summary judgment on its second and fourth counterclaims and on its twelfth and sixteenth affirmative defenses. Colony seeks a declaration that (1) Sandy Clarkson and McAlpine are not additional insureds under a primary policy issued to defendant Kingstone Builders Inc. (Kingstone) and (2) Colony has no duty to defend or indemnify Sandy Clarkson or McAlpine in the underlying personal injury action.
BACKGROUND
A. The Project Contracts
Sandy Clarkson owns real property located at 310 Clarkson Avenue, also known as 1299 Nostrand Avenue, in Brooklyn, New York (the Premises) ([NYSCEF] Doc No. 40, Aaron F. Fishbein [Fishbein] affirmation, exhibit E at 6). Sandy Clarkson, as "Owner," and McAlpine, as "Contractor," entered into a written contract effective March 4, 2015 (the Prime Contract), for McAlpine to perform construction work at the Premises (the Project) (NYSCEF Doc No. 78, Joseph K. Poe [Poe] affirmation, appendix 2 at 1).
Section 3.0.1 of the Prime Contract required McAlpine to purchase and maintain insurance, and Section 3.0.2 required McAlpine to ensure that it "shall cause each Subcontractor to provide, pay for, and maintain in full force and effect commercial general liability... and excess/umbrella liability insurance at minimum limits and coverage's similar to the minimum limits and coverages that [McAlpine] and/or [Sandy Clarkson] is required to furnish pursuant to the Contract Documents" (id. at 22). Section 3.2.1 states that all McAlpine and subcontractor-furnished insurance policies shall provide defense coverage and name Sandy Clarkson as an additional insured on a primary basis (id. at 23).
Pursuant to a written subcontract dated January 23, 2015 (the Subcontract), McAlpine hired Kingspan Incorporated (Kingspan) as its subcontractor to perform masonry work on the Project (NYSCEF Doc No. 42, Fishbein affirmation, exhibit G at 1 and 11). The Subcontract defined "Contractor" as McAlpine, "Subcontractor" as Kingspan, and "Owner" as Sandy Clarkson (id. at 1). The "Subcontract Documents" included, among other documents, the Subcontract and "the Prime Contract, consisting of the Agreement between the Owner and Contractor and the other Contract Documents enumerated therein" (id. at 3 [Section 1.1]).
Article 13 outlined Kingspan's insurance obligations. Section 13.1 instructed Kingspan to purchase and maintain certain types of insurance with specific limits of liability, including comprehensive general liability and property damage insurance and umbrella liability insurance "as will protect the Subcontractor from claims that may arise out of, or result from, the Subcontractor's operations and completed operations under the Subcontract" (id. at 16). Section 13.4 called for Kingspan to include Sandy Clarkson and McAlpine as additional insureds on its commercial liability coverage "for claims caused in whole or in part by the Subcontractor's negligent acts or omissions during the Subcontractor's operations" (id.).
A" Blanket Insurance/Indemnity Agreement" addendum stated that Kingspan "must comply with [McAlpine's] insurance coverage requirements" and procure and maintain certain types of insurance, including comprehensive general liability insurance with a $1 million per occurrence limit of liability and a $2 million aggregate per job and umbrella insurance with a limit of not less than $5 million (id. at 19-20). Kingspan also agreed to name McAlpine and the "owner" as additional insureds on a primary and noncontributory basis (id. at 19 [Section B (4)]).
In March 2017, Kingspan assigned the Subcontract to Kingstone (NYSCEF Doc No. 43).
B. The Colony Policies
Colony issued commercial general liability policy no. XXXX (the Colony Primary Policy) to Kingstone, in effect from May 4, 2017 to May 4, 2018 with a $1 million per occurrence limit and a $2 million general aggregate limit (NYSCEF Doc No. 44, Fishbein affirmation, exhibit I at 6 and 9). Section I of the Commercial General Liability Coverage Form, titled" COVERAGES," reads, in part:
" COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies. We will have the right and duty to defend the insured against any 'suit' seeking those damages. However, we will have no duty to defend the insured against any 'suit' seeking damages for 'bodily injury' or 'property damage' to which this insurance does not apply"(id. at 10). The Colony Primary Policy contained several endorsements, three of which are pertinent here. The" ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION" endorsement (the Additional Insured Endorsement) provides:
"This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
Schedule
Name Of Additional Insured Person(s) Or Organizations
Location(s) of Covered Operations
All persons or organizations as required by written contract with the Named Insured
As designated in written contract with the Named Insured
Information required to complete this Schedule, if not shown above, will be shown in the Declarations
A. Section II - Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for 'bodily injury', 'property damage' or 'personal and advertising injury' caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your behalf;
In the performance of your ongoing operations for the additional insured(s) at the location(s) designated above"
(id. at 33). An" AMENDMENT OF INSURED CONTRACT DEFINITION" endorsement modified the definition of an "insured contract" in the Commercial General Liability Coverage Part:
" f. That part of any other contract or agreement pertaining to your business... under which you assume the tort liability of another party to pay for 'bodily injury' or 'property damage' to a third person or organization, provided the 'bodily injury' or 'property damage' is caused, in whole or in part, by you or those acting on your behalf. However, such part of a contract or agreement shall only be considered an 'insured contract' to the extent your assumption of the tort liability is permitted by law. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement"(id. at 43). The" PRIMARY AND NON-CONTRIBUTORY - OTHER INSURANCE CONDITION - DESIGNATED ENTITY" endorsement partially reads:
"This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
Schedule
Name Of Person(s) Or Organizations All persons or organizations as required by written contract with the Named Insured
SECTION IV - COMMERCIAL GENERAL LIABLITY CONDITIONS, 4. Other Insurance... are amended and the following added and supersedes any provision to the contrary:
Primary And Noncontributory Insurance
This insurance is primary to and will not seek contribution from any other insurance available to the person(s) or organization(s) designated in the SCHEDULE above provided:
(1) the person(s) or organization(s) designated in the SCHEDULE above is a Named Insured under such other insurance; and
(2) you have agreed in writing in a contract or agreement that this insurance would be primary and would not seek contribution from any other insurance available to the person(s) or organization(s) designated in the SCHEDULE above"(id. at 61).
Colony issued excess liability policy no. XXXX (the Colony Excess Policy) to Kingstone, in effect from May 30, 2017 to May 4, 2018 with a $5 million per occurrence limit and a $5 million aggregate limit (NYSCEF Doc No. 76, Poe affirmation, exhibit 16 at 3). The Commercial Excess Liability Coverage Form states that "[t]he insurance provided under this policy will follow the same provisions, exclusions and limitations that are contained in the 'applicable underlying insurance'" (id. at 35), which was the Colony Primary Policy (id. at 7).
C. The Catlin Policy
Catlin issued commercial general liability policy no. XXXX (the Catlin Policy) to Sandy Clarkson, in effect from February 10, 2015 through August 10, 2017 with a $1 million limit per occurrence and a general aggregate limit of $2 million (NYSCEF Doc No. 51, Poe affirmation, exhibit P at 8-9). McAlpine is a named insured on the Catlin Policy (id. at 12).
D. The Underlying Action
On August 25, 2017, nonparty Heber Gamez, an employee of a McAlpine subcontractor, nonparty Cecere & Sons Inc., commenced the Gamez Action to recover damages for injuries he allegedly sustained on August 7, 2017, when he tripped and fell walking on a staircase between the second and third floors at the Premises (NYSCEF Doc No. 87, plaintiffs' response to statement of material facts, ¶¶ 2-3; NYSCEF Doc No. 39, Fishbein affirmation, exhibit D).
Sandy Clarkson and McAlpine brought a third-party action against Kingspan and others for contribution and contractual and common-law indemnification (NYSCEF Doc No. 40, Fishbein affirmation, exhibit E), and a second-third party complaint against Kingstone, formerly known as Kingspan, for contractual and common-law indemnification, contribution, and breach of contract (NYSCEF Doc No. 41, Fishbein affirmation, exhibit F).
In a decision and order dated April 14, 2022, the court (Suarez, J.) dismissed the Labor Law §§ 240 (1) and 241 (6) claims against Kingstone (NYSCEF Doc No. 75, Poe affirmation exhibit 15). Then, in a subsequent decision and order dated August 11, 2022, the court (Suarez, J.) granted Kingstone's motion for summary judgment dismissing the complaint, the second third-complaint and all cross-claims/counterclaims against it (NYSCEF Doc No. 74, Poe affirmation, exhibit 14).
Importantly, Kingstone had argued that McAlpine had not approved Kingstone's change order to complete infill work on the staircase between the second and third floor until after Gamez's accident (id. at 3). The court concluded that Gamez's accident did not arise out of Kingstone's work on the subject staircase so as to trigger the contractual indemnification provision in the Subcontract (id.). Three separate appeals of the August 11, 2022 order, entered on August 16, have since been perfected (see Gamez v Sandy Clarkson LLC, 2023 NY Slip Op 72283[U] [1st Dept 2023]).
E. The Tender Letters
In the meantime, by letter dated January 31, 2018, counsel for Sandy Clarkson and McAlpine tendered their defense and indemnification under the Colony Primary Policy (NYSCEF Doc No. 45, Fishbein affirmation, exhibit J). Colony rejected the tender by letter on June 4, 2018 because the "Contract does not constitute an insured contract under the terms of the Colony [Primary] Policy" (NYSCEF Doc No. 46, Fishbein affirmation, exhibit K at 1).
On April 5, 2021, counsel for Sandy Clarkson and McAlpine tendered their defense and indemnification under the Colony Primary Policy a second time, writing that Kingstone was performing work on the staircase when Gamez's accident occurred (NYSCEF Doc No. 47, Fishbein affirmation, exhibit L at 2). By letter dated April 28, 2021, Colony rejected the tender under the Colony Primary Policy and the Colony Excess Policy (together, the Colony Policies) because the coverage sought was outside the scope of both policies (NYSCEF Doc No. 48, Fishbein affirmation, exhibit M at 1).
Specifically, Colony noted that the terms of the Colony Policies dictated the scope of coverage and not any contractual or other representation made by its insured, Kingstone, in connection with the Project (id.). Colony cited the Additional Insured Endorsement, which required coverage only for those persons or organizations with a written contract with Kingstone (id. at 2). Because Kingstone did not contract with Sandy Clarkson, Sandy Clarkson was not considered an additional insured under the Colony Policies (id.). Citing the" AMENDMENT OF INSURED CONTRACT DEFINITION" endorsement, Colony denied coverage because Gamez's injuries did not arise from Kingstone's acts or omissions, as the staircase on which Gamez fell was not part of Kingstone's work (id. at 3-4). Last, Colony denied coverage under the" EXCLUSION - INJURY TO INDEPENDENT CONTRACTORS" endorsement on the ground that Gamez was employed by an independent contractor (id. at 4-5).
By letter dated November 17, 2021, counsel for Sandy Clarkson and McAlpine tendered their defense and indemnification under the Colony Policies a third time (NYSCEF Doc No. 49, Fishbein affirmation, exhibit N). Counsel wrote that Kingstone was contractually obligated to name Sandy Clarkson and McAlpine as additional insureds on the policies because the Prime Contract was made part of the Subcontract (id. at 3-4). Counsel concluded that Colony had breached its obligation to acknowledge Sandy Clarkson and McAlpine as additional insureds (id. at 4). Additionally, counsel wrote that Gamez's complaint was sufficient to trigger Colony's duty to indemnify, even though no formal finding of fault had been made in the Gamez Action (id. at 7). Counsel further claimed that Colony had waived its right to disclaim coverage based on exclusions in the Colony Policies because Colony failed to timely assert them (id. at 9-10).
Five days later, Colony rejected the tender on the ground that Sandy Clarkson and McAlpine failed to furnish any new information and falsely assumed that Kingstone had been contracted to repair the staircase prior to Gamez's accident (NYSCEF Doc No. 50, Fishbein affirmation, exhibit O).
Plaintiffs brought this action on April 27, 2022. The complaint asserted a single cause of action for a judgment declaring that (1) the Colony Policies provided additional insured coverage to and Colony must defend and indemnify Sandy Clarkson and McAlpine for the claims asserted in the Gamez Action on a primary and noncontributory basis relative to any coverage potentially available to them under the Catlin Policy; and (2) Colony must reimburse Sandy Clarkson and McAlpine for their defense costs and expenses in the Gamez Action from January 31, 2018 on (NYSCEF Doc No. 1, complaint at 13).
Colony served an answer in which it interposed 28 affirmative defenses. Colony's 12th affirmative defense is that neither Sandy Clarkson nor McAlpine are additional insureds under the Colony Policies. Colony's 16th affirmative defense is that Colony has no liability to plaintiffs given the terms, conditions and exclusions from coverage contained in the Colony Primary Policy (NYSCEF Doc No. 13, answer ¶¶ 46 and 50).
Colony also asserted five counterclaims for judgments declaring that: (1) Colony has no obligation to reimburse Catlin for its expenses in the defense and/or indemnification of Sandy Clarkson and/or McAlpine in the Gamez Action; (2) Colony has no obligation under the Colony Primary Policy to defend or indemnify Sandy Clarkson and/or McAlpine in the Gamez Action or reimburse Catlin, Sandy Clarkson and/or McAlpine their legal expenses in the Gamez Action; (3) to the extent Colony has defense or indemnification obligations, that the Colony Primary Policy is excess over other insurance policies; (4) Colony has no obligation under the Colony Excess Policy to defend or indemnify Sandy Clarkson and/or McAlpine in the Gamez Action or reimburse Catlin, Sandy Clarkson and/or McAlpine their legal expenses in the Gamez Action; and (5) to the extent Colony has defense or indemnification obligations, that the Colony Excess Policy is excess over other insurance policies (id., ¶¶ 64-100).
Plaintiffs now move for summary judgment in their favor on the complaint. Colony cross-moves for summary judgment dismissing the complaint and for summary judgment in its favor on its second and fourth counterclaims and its twelfth and sixteenth affirmative defenses.
DISCUSSION
The Parties' Contentions
Plaintiffs assert they are additional insureds under the Additional Insured Endorsement in the Colony Policies and that the allegations in the complaint in the Gamez Action are sufficient to trigger additional insured coverage on a primary, noncontributory basis.
Colony argues that Sandy Clarkson and McAlpine are not additional insureds on three grounds. First, the Additional Insured Endorsement requires a written contract between Kingstone and Sandy Clarkson, and Colony contends that element is not satisfied here. Second, Gamez's injury did not arise from Kingstone's acts or omissions, either in whole or in part, because McAlpine did not approve the change order for Kingston's staircase work at the accident location until after Gamez's accident occurred. Third, Gamez's injury did not arise from Kingstone's ongoing operations at the Premises because Kingstone performed no work at the accident location before the accident. Colony further argues that it is entitled to dismissal of plaintiffs' priority of coverage claim because neither Sandy Clarkson nor McAlpine are additional insureds under the Colony Policies. Last, Colony contends that plaintiffs' claim for reimbursement of their defense costs should be dismissed.
Analysis
A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). If the movant meets this burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). If the movant fails to meet its prima facie burden, the motion must be denied without regard to the sufficiency of the opposing papers (see Pullman v Silverman, 28 N.Y.3d 1060, 1063 [2016]).
An "insurer's duty to defend is liberally construed and is broader than the duty to indemnify" (Fieldston Prop. Owners Assn., Inc. v Hermitage Ins. Co., Inc., 16 N.Y.3d 257, 264 [2011]). An insurer must provide a defense when the allegations in the complaint "suggest 'a reasonable possibility of coverage'" (Rivera v Tribeca White St., LLC, 170 A.D.3d 446, 447 [1st Dept 2019], quoting Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 15 N.Y.3d 34, 37 [2010]). So long as the pleadings in the underlying lawsuit allege a covered occurrence, then an insurer has a duty to defend "even if 'facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered'" (Axis Surplus Ins. Co. v GTJ Co., Inc., 139 A.D.3d 604, 604-605 [1st Dept 2016], quoting Fitzpatrick v American Honda Motor Co., 78 N.Y.2d 61, 63 [1991]).
The insured bears the burden of demonstrating its entitlement to coverage (see National Abatement Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 33 A.D.3d 570, 570 [1st Dept 2006]). Where there is a dispute over coverage, the court must look to the policy's language first (Fieldston Prop. Owners Assn., Inc., 16 N.Y.3d at 264). Because an insurance policy is a contract, it is subject to the general rules applicable to contract interpretation (34-06 73, LLC v Seneca Ins. Co., 39 N.Y.3d 44, 51 [2022]). Policy provisions that are clear and unambiguous must be given their plain and ordinary meaning (Jin Ming Chen v Insurance Co. of the State of Pa., 36 N.Y.3d 133, 138 [2020]). "[A]mbiguities, if any, are to be resolved in the insured's favor and against the insurer" (United States Fid. & Guar. Co. v Annunziata, 67 N.Y.2d 229, 232 [1986]).
Here, plaintiffs have demonstrated that McAlpine is an additional insured under the Colony Primary Policy, and by extension, the Colony Excess Policy. The Additional Insured Endorsement defines "who is insured" as "[a]ll persons or organizations as required by written contract with the Named Insured" (NYSCEF Doc No. 44 at 33). Use of the word "with" implies that coverage is available to those with whom Kingstone had a contract (see Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 143 A.D.3d 146, 151-152 [1st Dept 2016], affd 31 N.Y.3d 131 [2018] [interpreting the phrase "any person with whom you have agreed to add as an additional insured by written contract" to mean any person the named insured had executed a contract with]). McAlpine executed the Subcontract with Kingstone's assignor, Kingspan, and thus, McAlpine qualifies as an additional insured under the Additional Insured Endorsement (id.).
Conversely, because Kingstone did not have a written contract with Sandy Clarkson, Sandy Clarkson does not qualify as an additional insured under the Colony Policies (see Dynatec Contr., Inc. v Burlington Ins. Co., 184 A.D.3d 475, 475 [1st Dept 2020]; Gilbane Bldg. Co./TDX Constr. Corp., 143 A.D.3d at 151-152). Thus, Colony is entitled to a declaration that it is not obligated to provide a defense to, provide coverage or indemnification for, or reimburse the defense costs and expenses incurred by plaintiffs on behalf of Sandy Clarkson in the Gamez Action.
Colony has shown that McAlpine is not entitled to indemnification related to the Gamez Action. As recited above, the coverage available to McAlpine is limited "with respect to liability for 'bodily injury' caused, in whole or in part, by [Kingstone's] acts or omissions in the performance of [Kingstone's] ongoing operations for [McAlpine]" (NYSCEF Doc No. 44 at 33). Based on this language, coverage is limited to instances where Kingstone's act or omission is the proximate cause of the injury (Burlington Ins. Co. v NYC Tr. Auth., 29 N.Y.3d 313, 321-323 [2017] [reasoning that the language "in whole or in part" refers to proximate cause, thereby limiting the named insured's liability to those injuries proximately caused by its acts or omissions]). Given that the Gamez Action and the third-party complaints in that action have been dismissed as against Kingstone, Colony has demonstrated that it is entitled to a declaration that McAlpine is not entitled to indemnification (see Live Nation Mktg. Inc v Greenwich Ins. Co., 188 A.D.3d 422, 423 [1st Dept 2020] [finding that the additional insured was not entitled to indemnity because the named insured did not proximately cause the bodily injury]).
That said, McAlpine is entitled to a defense in the Gamez Action. "To avoid its duty to defend, an insurer must show, 'as a matter of law[,] that there is no possible factual or legal basis on which the insurer might eventually be held to be obligated to indemnify the insured under any provision of the insurance policy'" (3650 White Plains Corp. v Mama G. African Kitchen Inc., 205 A.D.3d 468, 469 [1st Dept 2022] [citation omitted]). The complaint in the Gamez Action alleged that Sandy Clarkson owned the Premises, McAlpine was a general contractor for construction work performed at the Premises, and McAlpine hired various entities to perform that work (NYSCEF Doc No. 39, ¶¶ 6, 17, 38, 40-41, 49 and 51-52). The complaint further alleged that Gamez was engaged in performing construction, repair, demolition or renovation work at the Premises when he tripped and fell, sustaining injuries (id., ¶¶ 56-57 and 60-63). Gamez's verified bill of particulars alleged the incident occurred on the staircase between the second and third floors (NYSCEF Doc No. 65, Poe affirmation, exhibit 5, ¶ 4).
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]). Consequently, McAlpine is entitled to a declaration that Colony is obligated to provide it with a defense in the Gamez Action on a primary, noncontributory basis over the Catlin Policy, and that Colony is obligated to reimburse plaintiffs for the costs and expenses incurred in defending McAlpine in the Gamez Action within the limits of the Colony Policies.
Furthermore, although Colony cross-moved for summary judgment only on the second and fourth counterclaims, the relief sought in those counterclaims is similar and related to the relief sought in the first, third and fifth counterclaims. The court hereby searches the record, pursuant to CPLR 3212 (b), and grants summary judgment to plaintiffs dismissing in part the first, third and fifth counterclaims. Plaintiffs are entitled to a declaration in their favor to the extent indicated below (see P360 Spaces LLC v Orlando, 160 A.D.3d 561, 562 [1st Dept 2018], citing Lanza v Wagner, 11 N.Y.2d 317, 334 [1962], cert denied 371 U.S. 901 [1962]).
Accordingly, it is
ORDERED that the motion of plaintiffs Catlin Insurance Company, Sandy Clarkson LLC, and McAlpine Contracting Co. for summary judgment is granted only to the following extent, and otherwise denied: McAlpine is entitled to a declaration that (i) defendant Colony Insurance Company is obligated to provide a defense for McAlpine in the action captioned Gamez v Sandy Clarkson LLC, Sup Ct, Bronx County, Index No. 28003/2017E (the Gamez Action); (ii) such defense is primary without contribution to Catlin Insurance's coverage; (iii) Colony Insurance is obligated, within the limits of commercial general liability policy no. XXXX and excess liability policy no. XXXX, to reimburse plaintiffs the fees, costs, and expenses associated with the defense afforded to McAlpine in the Gamez Action; and it is further
ADJUDGED and DECLARED that Colony Insurance is obligated to provide a defense for McAlpine in the Gamez Action, and that such defense is primary without contribution to Catlin Insurance's commercial general liability policy no. XXXX; and it is further
ADJUDGED and DECLARED that Colony Insurance is obligated, within the limits of commercial general liability policy no. XXXX and excess liability policy no. XXXX, to reimburse plaintiffs the reasonable fees, costs, and expenses associated with the defense afforded to plaintiff McAlpine Contracting Co. in the Gamez Action; and it is further
ORDERED that the cross-motion of Colony Insurance for summary judgment, seeking dismissal of plaintiffs' first cause of action, and for judgment in Colony Insurance's favor on its 12th and 16th affirmative defenses and its second and fourth counterclaims, is granted only to the following extent: Colony Insurance is not obligated to provide a defense to, and provide coverage for, Sandy Clarkson in the Gamez Action; and Colony Insurance is not obligated to reimburse plaintiffs the fees, costs, and expenses associated with the defense afforded to Sandy Clarkson in the Gamez Action; and it is further
ORDERED that the balance of Colony Insurance's cross-motion is denied, and summary judgment is granted under CPLR 3212 (b) dismissing in part defendants' second and fourth counterclaims; and it is further
ORDERED that summary judgment is granted under CPLR 3212 (b) dismissing in part Colony Insurance's first, third, and fifth counterclaims, consistent with this court's disposition above of Colony Insurance's second and fourth counterclaims; and it is further
ADJUDGED and DECLARED that defendant Colony Insurance Company is not obligated to provide a defense to, and provide coverage for, plaintiff Sandy Clarkson LLC in the Gamez Action, and that defendant Colony Insurance Company is not obligated to reimburse plaintiffs the fees, costs, and expenses associated with the defense afforded to plaintiff Sandy Clarkson LLC in the Gamez Action.