Wilcox Dev. Corp. v. HDI Global Ins. Co.

Wilcox Dev. Corp. v HDI Global Ins. Co. (2021 NY Slip Op 05842)

Wilcox Dev. Corp. v HDI Global Ins. Co.

2021 NY Slip Op 05842

Decided on October 26, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 26, 2021
Before: Gische, J.P., Webber, Mazzarelli, Shulman, Pitt, JJ.
Index No. 651979/17 Appeal No. 14492 Case No. 2021-01152

McCarter & English, LLP, New York (Sherilyn Pastor of counsel), for appellant.

Gartner + Bloom PC, New York (Susan P. Mahon of counsel), for respondents.

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about March 8, 2021, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion for summary judgment declaring that defendant owes a duty to defend plaintiff Wilcox Development Corp. in the underlying action, and so declared, unanimously affirmed, with costs.

As the allegations of the complaint and third-party complaint in the underlying action suggest a reasonable possibility of coverage, defendant has a duty to defend Wilcox, an additional insured (BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 714—715 [2007]). The fact that Wilcox might ultimately be found liable solely for its own independent negligent acts and/or omissions, which would not be covered under the additional insured provision, does not negate defendant's duty to defend it (see Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 65-66 [1991]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 26, 2021