Qbe Ins. Corp. v. Adjo Contracting Corp.

CourtNew York Supreme Court Appellate Division
Writing for the CourtPETER B. SKELOS
Citation997 N.Y.S.2d 425,121 A.D.3d 1064,2014 N.Y. Slip Op. 07342
Decision Date29 October 2014
PartiesQBE 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.

?121 A.D.3d 1064
997 N.Y.S.2d 425
2014 N.Y. Slip Op. 07342

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.

Oct. 29, 2014


Ordered accordingly.

[997 N.Y.S.2d 428]

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

[997 N.Y.S.2d 429]

Hodgson Russ, LLP, New York (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, (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 (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 (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 (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 (Thomas F. Breen of counsel), for third-party defendant/second third-party defendant-appellant Interstate Fire and Casualty Company.
Jaffe & Asher, LLP, New York (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 (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 (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 (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 (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 (Justin N. Kinney and Michael Chuven of counsel), for second third-party defendant-appellant Zurich American Insurance Company.
Day Pitney LLP, New York (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 (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

[997 N.Y.S.2d 430]

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.

Motion by the 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, for leave to reargue stated portions of appeals from an order of the Supreme Court, Nassau County, entered April 7, 2011, which were determined by decision and order on motion of this Court dated December 11, 2013, or in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court. Separate motion by the 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, joined by the plaintiff-appellant, the third-party defendant/second third-party defendant-appellant American States Insurance Company, the third-party defendant/second third-party defendant-appellant Liberty Mutual Fire Insurance Company, and the second third-party defendant-appellant Zurich American Insurance Company, for leave to reargue stated portions of the appeals, or in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court. Separate motion by the third-party defendant/second third-party defendant-appellant Scottsdale Insurance Company, for leave to reargue stated portions of the appeals, or in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court. Separate motion by the third-party defendant/second third-party defendant-appellant ACE American Insurance Company, for leave to reargue stated portions of the appeals, or in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court. Separate motion by the third-party defendant/second third-party defendant-appellant Liberty Mutual Fire Insurance Company, for leave to reargue stated portions of the appeals, or in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court. Separate motion by the third-party defendant/second third-party defendant-appellant American States Insurance Company, for leave to reargue stated portions of the appeals, or in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court. Separate motion by the plaintiff-appellant for leave to reargue stated portions of the appeals, or in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court. Separate motion by the third-party defendant/second third-party defendant-appellant Delos Insurance Company, formerly known as Sirius America Insurance Company, for leave to reargue stated portions of the appeals, or in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court.

Upon the papers filed in support of the motions and the papers filed in opposition thereto, it is

ORDERED that the motion of the 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

[997 N.Y.S.2d 431]

ASN Roosevelt Center, LLC, doing business as Archstone Westbury, is denied; and it is further,

ORDERED that the motion of the third-party defendant/second third-party defendant-appellant Scottsdale Insurance Company is denied; and it is further,

ORDERED that the motion of the third-party defendant/second third-party defendant-appellant ACE American Insurance Company is denied; and it is further,

ORDERED that the motion of the third-party defendant/second third-party defendant-appellant Liberty Mutual Fire Insurance Company is denied; and it is further,

ORDERED that the motion of the third-party defendant/second third-party defendant-appellant American States Insurance Company is denied; and it is further,

ORDERED that the motion of the plaintiff-appellant is denied; and it is further,

ORDERED that the motion of the third-party defendant/second third-party defendant-appellant Delos Insurance Company, formerly known as Sirius America Insurance Company, is denied; and it is further,

ORDERED that the motion of the 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, joined by the plaintiff-appellant, the third-party defendant/second third-party defendant-appellant American States Insurance Company, the third-party defendant/second third-party defendant-appellant Liberty Mutual Fire Insurance Company, and the second third-party defendant-appellant Zurich American Insurance Company, is granted to the extent that reargument is granted, upon reargument, the decision and order of this Court dated December 11, 2013 ( see QBE Ins. Corp. v. Adjo Contr. Corp., 112 A.D.3d 686, 976 N.Y.S.2d 534), is recalled and vacated, and the following decision and order is substituted therefor, and the motion is otherwise denied:

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,...

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7 practice notes
  • Black & Veatch Corp. v. Aspen Ins. (Uk) Ltd., No. 12-2350-SAC
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • November 17, 2016
    ...v. Adjo Contracting Corp., 32 Misc. 3d 1231, 2011 WL 3505475 (Sup. Ct. Apr. 5, 2011), aff'd in part and rev'd in part on other grounds, 121 A.D. 3d 1064, 997 N.Y.S. 2d 425 (2d Dept. 2014). In interpreting this clause, the courts do not gloss over the words, assume or assumption, but read th......
  • U.S. Underwriters Ins. Co. v. Image By J&K, LLC, 16-CV-6176 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 14, 2018
    ...of Appeals has eschewed wooden application of the four corners of the complaint rule," see QBE Ins. Corp. v. Adjo Contracting Corp. , 121 A.D.3d 1064, 997 N.Y.S.2d 425, 440–41 (2014) (citations and internal quotation marks omitted), the extrinsic evidence relied upon may not overlap with th......
  • Maxum Indem. Co. v. A One Testing Laboratories, Inc., 14-cv-4023 (KBF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 10, 2015
    ...underlying facts made known to the insurer create’ a reasonable possibility of coverage.” QBE Ins. Corp. v. Adjo Contracting Corp. , 121 A.D.3d 1064, 997 N.Y.S.2d 425, 440–41 (2014) (quoting Fitzpatrick v. Am. Honda Motor Co. , 78 N.Y.2d 61, 571 N.Y.S.2d 672, 575 N.E.2d 90, 92, 95 (1991) ).......
  • Pro's Choice Beauty Care, Inc. v. Great N. Ins. Co., 2018–10274
    • United States
    • New York Supreme Court Appellate Division
    • January 20, 2021
    ...575 N.E.2d 90 ; One Reason Rd., LLC v. Seneca Ins. Co., Inc., 163 A.D.3d 974, 83 N.Y.S.3d 235 ; QBE Ins. Corp. v. Adjo Contr. Corp., 121 A.D.3d 1064, 1079, 997 N.Y.S.2d 425 ). "If the allegations of the complaint are even potentially within the language of the insurance policy, there is a d......
  • Request a trial to view additional results
7 cases
  • Black & Veatch Corp. v. Aspen Ins. (Uk) Ltd., No. 12-2350-SAC
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • November 17, 2016
    ...v. Adjo Contracting Corp., 32 Misc. 3d 1231, 2011 WL 3505475 (Sup. Ct. Apr. 5, 2011), aff'd in part and rev'd in part on other grounds, 121 A.D. 3d 1064, 997 N.Y.S. 2d 425 (2d Dept. 2014). In interpreting this clause, the courts do not gloss over the words, assume or assumption, but read th......
  • U.S. Underwriters Ins. Co. v. Image By J&K, LLC, 16-CV-6176 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 14, 2018
    ...of Appeals has eschewed wooden application of the four corners of the complaint rule," see QBE Ins. Corp. v. Adjo Contracting Corp. , 121 A.D.3d 1064, 997 N.Y.S.2d 425, 440–41 (2014) (citations and internal quotation marks omitted), the extrinsic evidence relied upon may not overlap with th......
  • Maxum Indem. Co. v. A One Testing Laboratories, Inc., 14-cv-4023 (KBF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 10, 2015
    ...underlying facts made known to the insurer create’ a reasonable possibility of coverage.” QBE Ins. Corp. v. Adjo Contracting Corp. , 121 A.D.3d 1064, 997 N.Y.S.2d 425, 440–41 (2014) (quoting Fitzpatrick v. Am. Honda Motor Co. , 78 N.Y.2d 61, 571 N.Y.S.2d 672, 575 N.E.2d 90, 92, 95 (1991) ).......
  • Pro's Choice Beauty Care, Inc. v. Great N. Ins. Co., 2018–10274
    • United States
    • New York Supreme Court Appellate Division
    • January 20, 2021
    ...575 N.E.2d 90 ; One Reason Rd., LLC v. Seneca Ins. Co., Inc., 163 A.D.3d 974, 83 N.Y.S.3d 235 ; QBE Ins. Corp. v. Adjo Contr. Corp., 121 A.D.3d 1064, 1079, 997 N.Y.S.2d 425 ). "If the allegations of the complaint are even potentially within the language of the insurance policy, there is a d......
  • Request a trial to view additional results

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