Qbe Ins. Corp. v. Adjo Contracting Corp.

• Decision Date: 11 December 2013
• Citation: 112 A.D.3d 686,976 N.Y.S.2d 534,2013 N.Y. Slip Op. 08238
• Parties: QBE INSURANCE CORPORATION, plaintiff-appellant, v. ADJO CONTRACTING CORPORATION, et al., defendants, Travelers Indemnity Company, defendant third-party plaintiff-respondent, Archstone, etc., et al., defendants second third-party plaintiffs-respondents, et al., second third-party plaintiffs; ACE American Insurance Company, et al., third-party defendants/second third-party defendants-appellants, et al., third-party defendants/second third-party defendants, Hartford Fire Insurance Company, et al., second third-party defendants.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 686

976 N.Y.S.2d 534

2013 N.Y. Slip Op. 08238

QBE INSURANCE CORPORATION, plaintiff-appellant,

v. ADJO CONTRACTING CORPORATION, et al., defendants,Travelers Indemnity Company, defendant third-party plaintiff-respondent,Archstone, etc., et al., defendants second third-party plaintiffs-respondents, et al., second third-party plaintiffs;ACE American Insurance Company, et al., third-party defendants/second third-party defendants-appellants, et al., third-party defendants/second third-party defendants,Hartford Fire Insurance Company, et al., second third-party defendants.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 11, 2013.

Abrams, Gorelick, Friedman & Jacobson, LLP, New York, N.Y. (Thomas R. Maeglin of counsel), for plaintiff-appellant.

Hodgson Russ, LLP, New York, N.Y. (Alba Alessandro, Ryan K. Cummings, Patrick M. Tomovic, and Kevin Szczepanski of counsel), for third-party defendant/second third-party defendant-appellant ACE American Insurance Company.

White and Williams LLP, New York, N.Y. (Robert Wright, Rafael Vergara, and Kim Kocher, pro hac vice, of counsel), for third-party defendants/second third-party defendants-appellants American European Insurance Company, formerly known as Merchants Insurance Company of New Hampshire, Inc., and Merchants Mutual Insurance Company.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Nicholas J. Kaufman, Glenn J. Fuerth, and Judy C. Selmeci of counsel), for third-party defendant/second third-party defendant-appellant American States Insurance Company.

Gallo Vitucci Klar, LLP, New York, N.Y. (Howard P. Klar, Kimberly A. Ricciardi, Daniel P. Mevorach, and Maria T. Erlich of counsel), for third-party defendant/second third-party defendant-appellant Delos Insurance Company, formerly known as Sirius America Insurance Company.

Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Edward J. Guardaro, Jr., Christopher M. Jacobs, and Robert E. Dapper, Jr., pro hac vice, of counsel), for third-party defendant/second third-party defendant-appellant Erie Insurance Exchange.

D'Amato & Lynch, LLP, New York, N.Y. (Thomas F. Breen of counsel), for third-party defendant/second third-party defendant-appellant Interstate Fire and Casualty Company.

Jaffe & Asher, LLP, New York, N.Y. (Marshall T. Potashner and Mark P. Monack of counsel), for third-party defendant/second third-party defendant-appellant Liberty Mutual Fire Insurance Company.

Law Offices of Todd M. McCauley, LLC, New York, N.Y. (Shirley J. Spira and David F. Tavella of counsel), for third-party defendant/second third-party defendant-appellant Ohio Casualty Insurance Company.

Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, P.C., New York, N.Y. (Kenneth R. Rothschild and Paul R. Walker, pro hac vice, of counsel), for third-party defendant/second third-party defendant-appellant Pennsylvania National Mutual Casualty Insurance Company.

Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick, Catherine R. Everett, Glenn A. Kaminska, and Nicholas M. Cardascia of counsel), for third-party defendant/second third-party defendant-appellant Scottsdale Insurance Company.

Menz Bonner Komar & Koenigsberg LLP, New York, N.Y. (Michael S. Komar, Melissa K. Driscoll, Wayne S. Karbal, pro hac vice, and Alan Posner, pro hac vice, of counsel), for second third-party defendant-appellant Hartford Fire Insurance Company.

Coughlin Duffy, LLP, New York, N.Y. (Justin N. Kinney and Michael Chuven of counsel), for second third-party defendant-appellant Zurich American Insurance Company.

Day Pitney LLP, New York, N.Y. (Matthew J. Shiroma, Kathleen D. Monnes, pro hac vice, and Linda B. Foster, pro hac vice, of counsel), for defendant third-party plaintiff-respondent, Travelers Indemnity Company.

Kilpatrick Townsend & Stockton LLP, New York, N.Y. (Edward J. Henderson, Barry J. Fleishman, pro hac vice, and Richard D. Dietz, pro hac vice, of counsel), for defendants second third-party plaintiffs-respondents Archstone, formerly known as Archstone–Smith Operating Trust, and Archstone Westbury, L.P., formerly known as Tishman Speyer Archstone–Smith Westbury, L.P., formerly known as ASN Roosevelt Center, LLC, doing business as Archstone Westbury.

PETER B. SKELOS, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.

In an action, inter alia, for a judgment declaring that the plaintiff, QBE Insurance Corporation, is not obligated to provide a defense or indemnification in three underlying actions entitled Hunter v. ASN Roosevelt Center, LLC, doing business as Archstone Westbury, Archstone, formerly known as Archstone–Smith Operating Trust v. Tocci Building Corporation of New Jersey, Inc., and In re Archstone Westbury Tenant Litigation, all pending in the Supreme Court, Nassau County, under Index Nos. 4856/08, 1018/08, and 21335/07, respectively, and related third-party and second third-party actions, (1) the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered April 7, 2011, as granted that branch of the motion of the defendant third-party plaintiff, Travelers Indemnity Company, which was for summary judgment declaring that the plaintiff is obligated to defend the defendant third-party plaintiff's insured, Tocci Building Corporation of New Jersey, Inc., in the underlying action entitled Archstone, formerly known as Archstone–Smith Operating Trust v. Tocci Building Corporation of New Jersey, Inc., and granted that branch of the motion of the defendants second third-party plaintiffs which was for summary judgment declaring that the plaintiff is obligated to defend them in the underlying action entitled In re Archstone Westbury Tenant Litigation; (2) the third-party defendant/second third-party defendant ACE American Insurance Company, the third-party defendants/second third-party defendants American European Insurance Company, formerly known as Merchants Insurance Company of New Hampshire, Inc., and Merchants Mutual Insurance Company, and the third-party defendants/second third-party defendants American States Insurance Company and Ohio Casualty Insurance Company separately appeal, as limited by their respective briefs, from so much of the same order as granted that branch of the motion of the defendant third-party plaintiff, Travelers Indemnity Company, which was for summary judgment on so much of the third-party complaint as sought a declaration that each of those third-party defendants/second third-party defendants is obligated to defend Tocci Building Corporation of New Jersey, Inc., in the underlying action entitled Archstone, formerly known as Archstone–Smith Operating Trust v. Tocci Building Corporation of New Jersey, Inc., granted that branch of the motion of the defendants second third-party plaintiffs which was for summary judgment on so much of the second third-party complaint as sought a declaration that each of those third-party defendants/ second third-party defendants is obligated to defend them in the underlying action entitled In re Archstone Westbury

Tenant Litigation

, and denied those branches of the separate cross motions of those third-party defendants/second third-party defendants which were for summary judgment declaring that they are not obligated to defend Tocci Building Corporation of New Jersey, Inc., in the underlying action entitled Archstone, formerly known as Archstone–Smith Operating Trust v. Tocci Building Corporation of New Jersey, Inc., and that they are not obligated to defend the defendants second third-party plaintiffs in the underlying actions entitled Hunter v. ASN Roosevelt Center, LLC, doing business as Archstone Westbury, and In re Archstone Westbury Tenant Litigation; (3) the third-party defendants/second third-party defendants Delos Insurance Company, formerly known as Sirius America Insurance Company, and Erie Insurance Exchange separately appeal, as limited by their respective briefs, from so much of the same order as granted that branch of the motion of the defendant third-party plaintiff, Travelers Indemnity Company, which was for summary judgment on so much of the third-party complaint as sought a declaration that they are obligated to defend Tocci Building Corporation of New Jersey, Inc., in the underlying action entitled Archstone, formerly known as Archstone–Smith Operating Trust v. Tocci Building Corporation of New Jersey, Inc., granted those branches of the motion of the defendants second third-party plaintiffs which were for summary judgment on so much of the second third-party complaint as sought a declaration that they are obligated to defend the defendants second third-party plaintiffs in the underlying actions entitled Hunter v. ASN Roosevelt Center, LLC, doing business as Archstone Westbury, and In re Archstone Westbury Tenant Litigation and denied those branches of their separate cross motions which were for summary judgment declaring that they are not obligated to defend Tocci Building Corporation of New Jersey, Inc., in the underlying action entitled Archstone, formerly known as Archstone–Smith Operating Trust v. Tocci Building Corporation of New Jersey, Inc., and that they are not obligated to defend the defendants second third-party plaintiffs in the underlying actions entitled Hunter v. ASN Roosevelt Center, LLC, doing business as Archstone Westbury, and In re Archstone Westbury Tenant Litigation; (4) the third-party defendant/second third-party defendant Interstate Fire and Casualty Company appeals, as limited by its brief, from so much of the same order as failed to search the record and sua sponte award it summary judgment declaring that it is not obligated to defend Tocci Building Corporation of New Jersey, Inc., in the underlying action entitled Archstone, formerly known as Archstone–Smith Operating Trust v. Tocci Building Corporation of New Jersey, Inc., and that it is not obligated to defend the defendants second third-party plaintiffs in...