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QBE Insurance Corporation v. Adjo Contracting Corporation

Supreme Court of New York, Second Department

December 11, 2013

QBE Insurance Corporation, plaintiff,
v.
Adjo Contracting Corporation, et al., defendants, et al., defendant third-party plaintiff, Archstone, etc., et al., defendants second third-party plaintiffs-respondents, et al., third-party defendants, et al., second third-party plaintiffs; Erie Insurance Exchange, third-party defendant/second third-party defendant-appellant, et al., third-party defendants/second third-party defendants, et al., second third-party defendants. Index No. 601695/09

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-partydefendant/second third-party defendant-appellant.

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.

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

DECISION & ORDER

In an action, inter alia, seeking declarations regarding various insurers' duties to provide a defense or indemnification in two underlying actions entitled Hunter v ASN Roosevelt Center, LLC, doing business as Archstone Westbury, and Archstone, formerly known as Archstone-Smith Operating Trust v Tocci Building Corporation of New Jersey, Inc., both pending in the Supreme Court, Nassau County, under Index Nos. 4856/08 and 1018/08, respectively, and related third-party and second third-party actions, the third-party defendant/second third-party defendant Erie Insurance Exchange appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered October 31, 2011, as granted that branch of the motion of the defendants second third-party plaintiffs which was to direct it to pay all of the defense costs of the defendants second third-party plaintiffs in the underlying actions.

ORDERED that order is reversed insofar as appealed from, on the law, without costs or disbursements, and that branch of the motion of the defendants second third-party plaintiffs which was to direct Erie Insurance Exchange to pay all of the defense costs of the defendants second third-party plaintiffs in the underlying actions entitled Hunter v ASN Roosevelt Center, LLC, doing business as Archstone Westbury, and Archstone, formerly known as Archstone-Smith Operating Trust v Tocci Building Corporation of New Jersey, Inc., is denied.

In an order entered April 7, 2011, the Supreme Court determined that the appellant, along with other insurers, was liable for the defense costs of the defendants second third-party plaintiffs in two underlying actions entitled Hunter v ASN Roosevelt Center, LLC, doing business as Archstone Westbury, and Archstone v Tocci Building Corporation of New Jersey, Inc. On the basis of that determination, the Supreme Court, in an order entered October 31, 2011, granted that branch of the motion of the defendants second third-party plaintiffs which was to direct the appellant to pay all of their defense costs in those underlying actions. Since, in a companion appeal (see QBE Ins. Corp. v Adjo Contr. Corp., A.D.3d [Appellate Division Docket No. 2011-04611; decided herewith]), we have determined that the appellant is not obligated to defend the defendants second third-party plaintiffs in the underlying actions, we must reverse the order entered October 31, 2011, insofar as appealed from, and deny that branch of the motion of the defendants second third-party plaintiffs which was to direct the appellant to pay such defense costs.

SKELOS, J.P., BALKIN, DICKERSON and COHEN, JJ., concur.


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