FILED: NEW YORK COUNTY CLERK 04/17/ :31 PM INDEX NO /2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 04/17/2017

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY GOTHAM INSURANCE COMPANY and EDRAS GROUP CORP., Plaintiffs, Index No.: / against - BURLINGTON INSURANCE COMPANY, BARCA RESTORATION, 345 WEST 13 th STREET HOLDERS, LLC, ANDREWS BUILDING CORP. and CARLOS MARMALEJO, Defendants. THE BURLINGTON INSURANCE COMPANY S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT LAZARE POTTER & GIACOVAS LLP 875 Third Avenue, 28 th Floor New York, New York (212) Attorneys for Defendant The Burlington Insurance Company 1 of 18

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 STATEMENT OF FACTS... 3 ARGUMENT... 8 I. EDRAS IS NOT AN INSURED OR... ADDITIONAL INSURED UNDER THE POLICY... 8 II. BURLINGTON HAS NO OBLIGATION TO DEFEND OR INDEMNIFY BARCA IN THE UNDERLYING ACTION A. The Contractual Liability Exclusion B. The Employee Exclusion CONCLUSION i 2 of 18

3 TABLE OF AUTHORITIES Cases Fryc v. JMT Bros. Realty, LLC, No /06, 2009 WL (Sup. Ct. Jan. 8, 2009) Guachichulca v. Laszlo N. Tauber & Assocs., LLC, 37 A.D.3d 760, 831 N.Y.S.2d 234 (2d Dep t 2007) Hartford Acc. & Indem. Co. v. Reale & Sons, 228 A.D.2d 935, 644 N.Y.S.2d 442 (3d Dep t 1996) Kelleran & Assocs., Inc. v. Zurich Specialties London, Inc., No. 05 CV 2452 (CBA), 2006 WL (E.D.N.Y. Nov. 29, 2006) Monteleone v. Crow Constr. Co., 242 A.D.2d 135, 673 N.Y.S.2d 408 (1st Dep t 1998)... 11, 15 National Abatement Corp. v. National Union Fire Insurance Co., 33 A.D.3d 570, 824 N.Y.S.2d 230 (1st Dep t 2006)... 9 Penske Truck Leasing Co., L.P. v. Home Ins. Co., 251 A.D.2d 478, 674 N.Y.S.2d 400 (2d Dep t 1998) Sampson v. Johnston, 272 A.D.2d 956, 708 N.Y.S.2d 210 (4th Dep t 2000) Utica First Ins. Co. v. Santagata, 66 A.D.3d 876, 888 N.Y.S.2d 94 (2d Dep t 2009) Western Heritage Ins. Co. v. Jacobs Dev. Corp., No. 12 CV 5718 (NGG) (LB) (E.D.N.Y. Jan. 27, 2014) York Restoration Corp. v. Solty s Constr., Inc., 79 A.D.3d 861, 914 N.Y.S.2d 178 (2d Dep t 2010) Zandri Constr. Co. v. Firemen's Ins. Co. of Newark, 81 A.D.2d 106, 440 N.Y.S.2d 353 (3d Dep t 1981) Zandri Constr. Co. v. Stanley H. Calkins, Inc., 54 N.Y.2d 999, 446 N.Y.S.2d 45, 430 N.E.2d 922 (1981) ii 3 of 18

4 PRELIMINARY STATEMENT Defendant The Burlington Insurance Company ( Burlington ), sued herein as Burlington Insurance Company, respectfully submits this memorandum of law in support of its motion for an order and judgment, pursuant to CPLR 3212, dismissing the complaint and any cross-claims against Burlington and declaring that Burlington has no obligation: i) to defend or indemnify defendant 345 West 13 th Street Holders, LLC ( 345 West 13 th ), defendant Andrews Building Corp. ( ABC ), plaintiff Edras Group Corp. ( Edras ) or defendant Barca Restoration ( Barca ) in an underlying personal injury action (New York County Supreme Court, Index No /2015) (the Underlying Action ); ii) iii) iv) to reimburse plaintiff Gotham Insurance Company ( Gotham ) for any defense costs or expenses allegedly incurred in its defense of Edras, 345 West 13 th and/or ABC in the Underlying Action or incurred herein; to reimburse Barca for any defense costs or expenses allegedly incurred in its defense of Underlying Action or incurred herein; and for such other and further relief as this Court deems just and proper. The Court is respectfully referred to the accompanying April 17, 2017 Affirmation of Yale Glazer, Esq. ( Glazer Aff. ) and the April 17, 2017 Affidavit of Peter L. Williams ( Williams Aff.). Burlington issued a liability policy to Barca, its named insured. On September 21, 2012, Barca contracted with general contractor Edras to perform work at the property located at 345 West 13 th Street, New York, New York (the Premises ). 345 West 13 th owned the Premises and ABC was its agent. The contract did not require Barca to name Edras, 345 West 13 th, ABC or any other individual or entity as an insured or an additional insured. 1 4 of 18

5 On November 14, 2012, Carlos Marmolejo ( Claimant ), a Barca employee, was allegedly injured while working for Barca on the Premises. On August 23, 2013, nearly a year later, Barca signed a generic, non-project specific Standard Form of Agreement Between Contractor and Subcontractor with Edras which contained insurance procurement language. Claimant s counsel sent an October 2014 representation letter to Edras, who tendered to Burlington seeking coverage for Edras. Following its investigation, Burlington disclaimed any obligation to defend or indemnify Edras, 345 West 13 th or Barca in connection with Claimant s alleged accident or injury. In February 2015, Claimant sued 345 West 13 th, ABC and Edras, seeking damages for his alleged injuries (the Underlying Action ). Gotham, Edras general liability insurer, brought the instant action seeking a declaration that Burlington is obligated to defend and indemnify Edras in the Underlying Action and to reimburse Gotham for incurred defense costs. Barca amended its answer to assert cross-claims against Burlington seeking a declaration that Burlington is obligated to defend and indemnify Barca in the Underlying Action. After deposing all relevant parties, discovery confirmed that there was no written contract in effect as of the date of Claimant s alleged injury in which Barca agreed to have Edras, or any other party or entity, named as an insured or additional insured on Barca s liability policy. Indeed, based on the undisputed documentary evidence and testimony, Plaintiffs, 345 West 13 th and ABC stipulated to discontinue all claims against Burlington. Barca, however, refused to stipulate. Respectfully, the complaint and all cross-claims against Burlington should be dismissed and the court should declare that Burlington has no obligation to defend or indemnify 345 West 13 th, ABC, Edras, Barca or any other entity in connection with Claimant s alleged accident or 2 5 of 18

6 Underlying Action, or to reimburse Gotham, Barca or any other entity for any defense costs or expenses incurred in connection with the Underlying Action or herein. Specifically, - While the Burlington policy contains an additional insured endorsement, among other requirements, Barca must have agreed in writing to name another entity as an additional insured. Here, it is undisputed that Barca did not agree in writing to name Edras, or any other party, as an additional insured for its work at the Premises. In fact, the only writing containing insurance procurement language was a non-project specific document first signed more than nine months after Claimant s alleged accident. For this reason, the additional insured endorsement is not triggered and Burlington is entitled to a declaration that it does not owe additional insured coverage to 345 West 13 th, ABC, Edras or any other entity in connection with Claimant s alleged accident or the Underlying Action. (infra pp. 8-10); - Burlington likewise has no obligation to defend or indemnify Barca in the Underlying Action based on the Burlington policy s contractual liability exclusion. While it contains an insured contract exception, even if the postaccident signed contract could qualify as an insured contract (which Burlington disputes), the bodily injury must occur subsequent to execution of said contract, which indisputably did not happen here. Accordingly, this exclusion precludes coverage to Barca. (infra pp ); and - Since policy exclusions apply seriatim, based on the contractual liability exclusion, the Court should declare no coverage for Barca under the policy. In any event, the policy s employee exclusion likewise precludes coverage to Barca for Claimant s alleged injury and Underlying Action. (infra pp ). For the reasons stated herein and in the accompanying papers, Burlington respectfully requests that its motion be granted in its entirety. The Burlington Policy STATEMENT OF FACTS Burlington issued a commercial general liability ( CGL ) policy (no. HGL ) to Barca effective January 5, 2012 to January 5, 2013 (the Policy ). (Williams Aff., 2; Exh. A ). The Policy included a CGL coverage form. (Williams Aff., 2; Exh. A-1"). The Policy contains an additional insured ( AI ) endorsement which provides as follows: 3 6 of 18

7 ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - AUTOMATIC STATUS WHEN REQUIRED IN CONSTRUCTION AGREEMENT WITH YOU A. Section II Who Is An Insured is amended to include as an additional insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to bodily 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. A person s or organization s status as an additional insured under this endorsement ends when your operations for that additional insured are completed. (Williams Aff., 2; Exh. A-2"). The Policy contains the following pertinent exclusions: 2. Exclusions This insurance does not apply to: * * * * b. Contractual Liability Bodily injury... for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages: (1) That the insured would have in the absence of the contract or agreement; or (2) Assumed in a contract or agreement that is an insured contract, provided the bodily injury... occurs subsequent to the execution of the contract.... d. Workers Compensation and Similar Laws 4 7 of 18

8 Any obligation of the insured under a workers compensation, disability benefits or unemployment compensation law or any similar law. e. Employer s Liability Bodily injury to: (1) An employee of the insured arising out of and in the course of: (a) Employment by the insured; or (b) Performing duties related to the conduct of the insured s business... This exclusion applies whether the insured may be liable as an employer or in any other capacity and to any obligation to share damages with or repay someone else who must pay damages because of the injury. This exclusion does not apply to liability assumed by the insured under an insured contract. (Williams Aff., 3; Exh. A-1," p. 2 of 16). Finally, the Policy defines insured contracts in pertinent part as: 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... to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. (Williams Aff., 4; Exh. A-1," p. 13 of 16). The Edras/Barca Contract On September 21, 2012, Edras and Barca entered into a contract (the Edras/Barca Contract ) whereby Barca would perform waterproofing services at the premises located at 345 West 13 th Street, New York, New York (the Premises ). (Williams Aff., 5; Exh. B [Bates TBIC 5]; Exh. C, pp , 44-47, 49-50; Exh. D, pp , 95-96). Edras had previously 5 8 of 18

9 contracted with 345 West 13 th s Board to perform work at the Premises. (Williams Aff., 5; Exh. C, pp ; Exh. E ). The Edras/Barca Contract contained no insurance procurement or indemnity language. (Williams Aff., 5; Exh. B [Bates TBIC 5]; Exh. C, pp , 46-47; Exh. D, pp , 95-96, , ). The Accident Claimant avers that he was injured on November 14, 2012 while employed by and working for Barca at the Premises. (Williams Aff., 6; Exh. F [Exh. A thereto], 10, 15). The August 2013 Contract In August 2013, after completion of the Edras/Barca Contract and nine months after Claimant s alleged accident, Edras advised Barca that if and to the extent it wanted to do any more work for Edras on any other jobs, it needed to sign another document. (Williams Aff., 7; Exh. C, pp ; Exh. D, pp ). Thus, Barca signed, for the first time, a document entitled Standard Form of Agreement Between Contractor and Subcontractor (the 2013 Document ). (Williams Aff., 7; Exh. B [Bates TBIC 6-7]; Exh. C, pp ; Exh. D, pp ). Edras principal testified that, upon the recommendation of its new insurance broker, instead of having its subcontractors provide only a job specific proposal for each job and one non-specific certificate of insurance per year, it changed its policy to require a separate certificate of insurance for each job and the more detailed form 2013 Document, specific to each job. (Williams Aff., 7; Exh. C, pp ; Exh. D, p. 132). Gotham s Tender and Burlington s Declination By letter dated November 3, 2014, Gotham tendered Claimant s claim to Burlington. (Williams Aff., 8; Exh. B ). Burlington denied coverage to Gotham/Edras by letter dated December 17, (Williams Aff., 8; Exh. G ). Burlington likewise disclaimed coverage to 6 9 of 18

10 Barca, who had failed to timely notify Burlington of Claimant s alleged accident, by letter of the same date. (Williams Aff., 8; Exh. H ). The Underlying Action In February 2015, Claimant commenced the Underlying Action, suing Edras, 345 West 13 th and ABC. (Williams Aff., 9; Exh. F [Exh. A thereto]). Burlington, upon receipt of Gotham/Edras tender of the Underlying Action, confirmed its prior coverage denial. (Williams Aff., 9; Exh. I ). The Instant Action and Discontinuance of Claims Against Burlington In or around October 2015, Gotham and Edras commenced this action, seeking a declaration that Burlington was obligated to defend and indemnify Edras in the Underlying Action and reimburse defense costs and expenses incurred to defend Edras therein. (Williams Aff., 10; Exh. F ). Burlington timely answer the complaint on December 17, (Glazer Aff, 8; Exh. J ). 345 West 13 th and ABC likewise answered. (Glazer Aff, 8; Exh. K ). Barca s motion to amend its answer to assert cross-claims against Burlington was granted and its amended answer was served on December 5, (Glazer Aff, 8; Exh. L ). Following completion of discovery, which confirmed that there was no written contract in effect on the date of Claimant s alleged injury sufficient to trigger the Policy s AI Endorsement or to except the Policy s contractual liability or employee exclusions, Burlington requested that all parties agree to voluntarily discontinue this action. (Glazer Aff., 8). Plaintiffs, 345 West 13 th and ABC agreed and executed a stipulation of discontinuance. (Glazer Aff, 8; Exh. M ). Barca, however, refused, necessitating this motion of 18

11 ARGUMENT I. EDRAS IS NOT AN INSURED OR ADDITIONAL INSURED UNDER THE POLICY In order for Edras to qualify as an additional insured under the Policy, Edras and Barca first must have agreed in writing that Barca would name Edras as an additional insured. While there are additional requirements to trigger coverage under the AI Endorsement, 1 the admitted, undisputed absence of any such contract in existence on the date of loss curtails any further inquiry and mandates dismissal of Plaintiffs claims against Burlington and a declaration of no coverage. The Policy s AI Endorsement provides as follows: A. Section II Who Is An Insured is amended to include as an additional insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to bodily 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. A person s or organization s status as an additional insured under this endorsement ends when your operations for that additional insured are completed. (Williams Aff., 2; Exh. A-2"). 1 For example, there would only be coverage for the additional insured for bodily injury caused in whole or in part by Barca s acts or omissions, the bodily injury must occur in the performance of Barca s ongoing operations for that additional insured, and the additional insured s status would end once Barca completes its operations for that additional insured. (Williams Aff., 2; Exh. A-2") of 18

12 Where, as here, it is undisputed that the only writing between Edras and Barca was the Edras/Barca Contract, which contained no insurance procurement or indemnification language, the AI Endorsement is not triggered and Burlington is entitled to the declarations sought against Edras and Gotham. (Williams Aff., 5; Exh. B [Bates TBIC 5]; Exh. C, pp , 46-47; Exh. D, pp , 95-96, , ). New York case law confirms this result. For example, in National Abatement Corp. v. National Union Fire Insurance Co., 33 A.D.3d 570, 570, 824 N.Y.S.2d 230, 232 (1st Dep t 2006), the Court, addressing the additional insured endorsement, held that there is additional insured coverage only if such coverage is required by written contract, but none existed at the time of the accident underlying this personal injury action. (emphasis added). The Court further held that contrary to [the claimed additional insured s] understanding, the fact that an unsigned contract may be enforceable if there is objective evidence that the parties intended to be bound... has no bearing on whether there is a written contract pursuant to the policy endorsement. Id. See also York Restoration Corp. v. Solty s Constr., Inc., 79 A.D.3d 861, 914 N.Y.S.2d 178 (2d Dep t 2010) (where claimed additional insured was not named as same under the policy until five weeks after the underlying accident, did not qualify as additional insured); Penske Truck Leasing Co., L.P. v. Home Ins. Co., 251 A.D.2d 478, 674 N.Y.S.2d 400 (2d Dep t 1998) (endorsement provided coverage to entities where required by contract, and noting that while parties could agree to make an assignment retroactively effective, they could not obligate [the insurer] to provide retroactive insurance coverage ). The uncontradicted testimony from both Edras and Barca s principals confirmed that the only contract in effect at the time of Claimant s alleged accident was the Edras/Barca Contract, which contained no additional insured procurement or indemnification language. (Williams Aff., 9 12 of 18

13 7; Exh. B [Bates TBIC 5]; Exh. C, pp , 44-47, 49-50; Exh. D, pp , 95-96, , ). Conceding that the AI Endorsement was not triggered so as to provide coverage, Edras, Gotham, 345 West 13 th and ABC agreed to discontinue all claims against Burlington. (Glazer Aff, 8; Exh. M ). However, in light of Barca s refusal to execute the stipulation, pursuant to CPLR 3217(2), Burlington was forced to move for the relief and declarations sought herein. Burlington respectfully request that the court grant Burlington s motion for summary judgment against Plaintiffs 2 and declare that Burlington has no obligation to defend or indemnify Edras, 345 West 13 th, ABC and/or any other claimed additional insured in the Underlying Action, and no obligation to reimburse Gotham or any other entity or insurer for any defense costs or expenses incurred in Edras, 345 West 13 th s or ABC s defense therein. II. BURLINGTON HAS NO OBLIGATION TO DEFEND OR INDEMNIFY BARCA IN THE UNDERLYING ACTION For the reasons set forth above, Burlington has no obligation to Edras, 345 West 13 th, ABC or any other claimed additional insured in connection with Claimant s alleged injury or the Underlying Action. The Policy s contractual liability and employee exclusions preclude any coverage to Barca in connection with the Underlying Action and, accordingly, Burlington is entitled to a declaration that: i) it has no obligation to defend or indemnify Barca in the 2 As Plaintiffs, 345 West 13 th and ABC did the right thing and agreed to voluntary discontinue the action when it became apparent that they could not succeed on their claims as a matter of law, any costs assessed by the Court in connection with Burlington s motion should be imposed solely against Barca, and not Plaintiffs, 345 West 13 th or ABC of 18

14 Underlying Action or reimburse any fees it incurred in its defense (or herein); and ii) dismissal of Barca s cross-claim against Burlington. Notably, policy exclusions are to be read seriatim and, if any one exclusion applies, there is no coverage since no one exclusion can be regarded as inconsistent with another. Hartford Acc. & Indem. Co. v. Reale & Sons, 228 A.D.2d 935, 936, 644 N.Y.S.2d 442, 443 (3d Dep t 1996); see also Monteleone v. Crow Constr. Co., 242 A.D.2d 135, , 673 N.Y.S.2d 408 (1st Dep t 1998); Sampson v. Johnston, 272 A.D.2d 956, 956, 708 N.Y.S.2d 210, 211 (4th Dep t 2000); Zandri Constr. Co. v. Firemen's Ins. Co. of Newark, 81 A.D.2d 106, 109, 440 N.Y.S.2d 353 (3d Dep t 1981), aff d. sub nom. Zandri Constr. Co. v. Stanley H. Calkins, Inc., 54 N.Y.2d 999, 446 N.Y.S.2d 45, 430 N.E.2d 922 (1981). Thus, so long as any policy exclusion precludes coverage to Barca, Burlington is entitled to dismissal of Barca s claims. Here, two exclusions apply. A. The Contractual Liability Exclusion Barca seeks defense and indemnification coverage from Burlington under the Policy for the Underlying Action. Burlington s denial of coverage to Barca must be affirmed and Barca s cross-claim dismissed as it is undisputed that the Policy s unambiguous contractual liability exclusion precludes coverage to Barca for the Underlying Action. It is undisputed that Claimant was an employee of Barca working for it at the time of his alleged accident. (Williams Aff., 6; Exh. F [Exh. A thereto], 10, 15; Exh. D, pp ). As the employer, Barca cannot be sued directly, but only on a purported contractual indemnification basis. The Edras/Barca Contract, however, contains no contractual indemnity language. (Williams Aff., 5; Exh. B [Bates TBIC 5]; Exh. C, pp , 44-47, 49-50; of 18

15 Exh. D, pp , 95-96, , ). It is undisputed that the only document which purports to contain any indemnity language is the 2013 Document. (Williams Aff., 7; Exh. B [Bates TBIC 5]; Exh. C, pp , 46-47; Exh. D, pp , 95-96, , ). Even if the 2013 Document could be shown to be relevant to Barca s work at the Premises as the time of Claimant s alleged accident, it was not even given to Barca to sign until August 2013, nine months after Claimant s alleged accident. (Williams Aff., 7; Exh. B [Bates TBIC 6-7]; Exh. C, pp ; Exh. D, pp ). The Policy contains the following exclusion: This insurance does not apply to: * * * * b. Contractual Liability Bodily injury... for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages: (1) That the insured would have in the absence of the contract or agreement; or (2) Assumed in a contract or agreement that is an insured contract, provided the bodily injury... occurs subsequent to the execution of the contract.... (Williams Aff., 3; Exh. A-1, p. 2 of 16). Thus, the Policy excludes any liability for which Barca is obligated to pay damages by reason of a contractual liability agreement. There is an exception to this exclusion, however. Had Barca assumed such liability in an insured contract (i.e., an indemnity agreement), and if the bodily injury occurred after execution of that contract, the exclusion could be excepted. (Williams Aff., 3; Exh. A- 1," pp 2, 13 of 16) of 18

16 Even if the 2013 Document could be considered an insured contract relevant to Barca s work at the Premises (which Burlington disputes), it is undisputed that it was not executed until after Claimant s alleged injury. Accordingly, the exclusion applies, Barca is not entitled to coverage under the Policy, and Burlington is entitled to a declaration that it has no duty to defend or indemnify Barca in the Underlying Action and dismissal of Barca s cross-claims against it. See Kelleran & Assocs., Inc. v. Zurich Specialties London, Inc., No. 05 CV 2452 (CBA), 2006 WL , *3 (E.D.N.Y. Nov. 29, 2006); see also Western Heritage Ins. Co. v. Jacobs Dev. Corp., No. 12 CV 5718, *8 (NGG) (LB) (E.D.N.Y. Jan. 27, 2014); Fryc v. JMT Bros. Realty, LLC, No /06, 2009 WL (Sup. Ct. Jan. 8, 2009). B. The Employee Exclusion For the reasons stated in Section II.A. supra, Burlington is entitled to a declaration of non-coverage against Barca for the Underlying Action. In any event, Barca s request for coverage is likewise precluded by the Policy s employee exclusion, and coverage should be denied for this reason as well. The Policy s employee exclusion provides as follows: This insurance does not apply to: e. Employer s Liability * * * * Bodily injury to: (1) An employee of the insured arising out of and in the course of: (a) Employment by the insured; or of 18

17 (b) Performing duties related to the conduct of the insured s business... This exclusion applies whether the insured may be liable as an employer or in any other capacity and to any obligation to share damages with or repay someone else who must pay damages because of the injury. This exclusion does not apply to liability assumed by the insured under an insured contract. (Williams Aff., 3; Exh. A-1," p. 2 of 16). Two facts are undisputed: Claimant was an employee of and working for Barca at the time of his alleged accident, and there was no insured contract in effect on the date of Claimant s alleged accident. (Williams Aff., 5-6; Exh. B [Bates TBIC 6-7]; Exh. C, pp , 46-47; Exh. D, pp , 78-84, 86-88, 95-96, , Exh. F [Exh. A thereto, 10, 15). The Policy s employee exclusion thus precludes coverage for Claimant s alleged accident and the Underlying Action. See Monteleone v. Crow Constr. Co., 242 A.D.2d 135, , 673 N.Y.S.2d 408 (1st Dep t 1998); see also Guachichulca v. Laszlo N. Tauber & Assocs., LLC, 37 A.D.3d 760, 831 N.Y.S.2d 234 (2d Dep t 2007); Utica First Ins. Co. v. Santagata, 66 A.D.3d 876, 888 N.Y.S.2d 94 (2d Dep t 2009). CONCLUSION For the reason set forth herein and in the accompanying papers, Burlington respectfully requests that its motion be granted in its entirety. Dated: New York, New York April 17, of 18

18 LAZARE POTTER & GIACOVAS LLP By: s/yale glazer Stephen M. Lazare Yale Glazer 875 Third Avenue, 28 th Floor New York, New York (212) Attorneys for Defendant The Burlington Insurance Company TO: HAVKINS ROSENFELD RITZERT & VARRIALE, LLP Christopher Gibbons, Esq. 114 Old Country Road, Suite 300 Mineola, New York (516) Attorneys for Plaintiffs ROBERT GUSTI, ESQ. & ASSOCIATES, PLLC Katie Gusti, Esq Bell Boulevard, Suite 601 Bayside, New York (718) Attorneys for Barca Restoration WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP Joseph McGovern, Esq Westchester Avenue White Plains, New York (914) Attorneys for 345 West 13 th Street Holders, LLC and Andrews Building Corp of 18