Delaney Assoc., LP v Regan Agency, Inc.

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Delaney Assoc., LP v Regan Agency, Inc. 2012 NY Slip Op 32341(U) September 5, 2012 Supreme Court, Suffolk County Docket Number: 12-1032 Judge: Thomas F. Whelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHalf! FORM ORDER copY' INDEX No. 12-1032 SUPREME COURT - STATE OF NEW YORK IAS. COMMFRCIAL PART 45 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE 7/11112 AD./. DATES 8/17/12 Mot. Seq. # 001 - MD Mot. Seq. # 002 - XMD cmsp Y N ---.L ---------------------------------------------------------------X DELANEY ASSOCIATES, LP, Plaintiff, GOLDBERG & CONNOLLY, ESQS. Attys. For Plaintiff ' 66 No. Village Ave. Rockville Centre, NY 11570 -againstREGAN AGENCY, INC., NATIONAL FIRE INSURANCE COMPANY OF HARTFORD and CNA FINANCIAL CORPORATION, Defendants COLLlAU, CARLUCCI, KEENER ET AL Attys. For Defendant National Fire Ins. Co. 125 Broad St. New York, NY 10004 DEVITT, SPELLMAN, BARRETT, LLP Attys. For Defendant CNA Financial Corp. 50 Route 111 Smithtown, NY I 1787 WILSON, ELSER, MOSKOWITZ, ET AL Attys. For Defendant Regan Agency 3 Gannett Dr. White Plains, NY 10604 ----------------------------------------------------------------X Upon the following papers numbered I to _IS_read on this motion for partial summary judgment and cross motion for summarY judgment ; Notice of Motion/Order to Show Cause cmd suppolling papers ....L.:..L; Notice of Cross Motion and supporting pilpcrs 4~6 ; Answering Affidavits and supporting papers ~7~; ~8~-~1 O~; _ Replying Affiduvitsund supporting papers 1]-12: ; Other 13-14 (memorandum); 15 (memorandum): 16 (memorandum): 17-18 (memorandum) ; (Md aRc] hUII iug Cl'>Ull:!e1 support mid ¢ ¢. ¢ ill pptl~ed ttl tile 1I1 ¢ ¢. ¢ li<".ll'l) is, it ORDERED that this motion (#001) by the plaintiff for partial summary judgment on those ponions of its First cause of action wherein it seeks a judicial declaration that defendants, National Fire Insurance Company of Hartford and CNA Financial Corporation, are obligated to assume the defense of certain indemnitees of the plailltiffwho are defendants in a personal injury action pending in New York County, is considered under CPLR 3212 and Insurance Law § 3420 and is dellled; and it is further ORDERED that pursuant to CPLR 32 I2(b), the court hereby declares that defendant, National Fire Insurance Company of Hartford, is not required to defend the plaintiff or its indemnitees against the claims pending against said indemnitees in the personal injury action entitled Texiera v City of New York (Index '# 10-106707), pending in NYS Supreme Court, New York County; and it is rurther [* 2] Delaney Assoc. v Regan Agency, Inc. Ill, af. Judex NO.1 032-12 Page 2 ORDERED that the cross motion (#002) by the defendant, National Fire Insurance Company of Hartford, for summary.1udgment against the plaintiffby the issuance ofa declaration that defendant National fire Insurance Company of Hartford is not obligated to provide a defense to the plaintifrs mdemnitees 10 the underlying personal l!1Juryaction is considered under CPLR 3212 and Insurance Law >3420 and IS denied. The plaintiflcoJnmcnced this action to obtain ajudgment against defendants, National Fire Insurance Company of Hartford [hercinal1er "National"] and CNA Financial Corporation [hereinafter '·CNA"J decl:~ring each are obligated to provide the plaintiff's contract indemnitees with both a defense and mdcmnity ifnecessary, with respect to claims asserted in a personal injury action commenced against certain municipal defendants whom the plaintiff agreed to insure against liability claims under the terms of construction contract with such mU11lcipaldefendants. The plaintiff further seeks recovery of money damages agamst defendant, Regan Agency, Inc. [hereinafter "Regan"], an insurance agency that providcd insurance coverage and other services to the plamtiff. Advanced in the record adduced on the instant motions are the h)lIow1l1gfads deemed material to the court's resolution of such applications. In February of 2008, the plaintiff entered into a contract with the City of New York and therein promised to perform construction work to repair collapsed or broken storm, sanitary or combined sewer drains, water mams and the like. Under the terms of that contract, the plamtiffwas allegedly required to obtai.ll insurance coverage 111he form of General Liability Insurance Coverage and Business Automobile t Insurance Coverage so as to provide the City with a defense against liability claims asserted against it and indemnity 111 event any such claim was successfully prosecuted by inj urcd persons. The plaintiff the allegedly advised defendant Regan of its contractual insurance obligations under the City contract and directed Regan to obtain insurance providing the coverages specified. A general liability policy of the type contemplated by the plaintiff's contract with the City affording coverage to the City as an additional insured is alleged to have been in effect from November I, 2008 through November 1,2009 under a policy issued by the Arch Insurance Company. Automobile insurance coverage which extended to the City as an additional insured was in place as of November ],2008 through Nowmber 1,2009 under a policy issued by defendant National. On October 9,1009, Joao Tcxieru, an employee of the plaintiff was injured while in the plaintiff's employ _Within a month of his accident, Texiera filed a Notice of Claim against the City and its departments of Transportation and Environmental Protection alleging therein that he sustained personal injuries due to an "obstructed. cracked, uneven raised, depressed missing portion of the roadway adjacent to a sewer grate which was detenorated and/or in a state of disrepair and/or state of improper repair (see Notice of Claim attached as ExhIbit 2 to the Affirmation of attorney Kroeger submitted in support of plall1tiffs moving papers). -Theroadway surface defect was described as situated on Allen Street in lower Manhattan. An inqmry ofTexlera of the type contemplated by the hearing provisions of ~ 50-h of the General MuniCIpal Law was held on March 24, 2010 (see '17 of the Compla1l1t attached as Exhibit:; to Kroeger's affirmation). Four days alter Texiera's fal Lthe pJamtitfcompleted an Employer's Report of\Vork-Related Injury on a form (C-2) provided by the New York State Workers' Compensation Board_ The report included allegations that Texicra's fall occurred at 10:00 p.m. on October 9, 2009. In that report, a partner of the plaintiff who prepared the report descnbed the accldent as occurring as fi.)llows: '"employee was retrieving equipment from work van to begin ,"vorkwhen he turned and twisted his right knee" (see Section D, '110 C-2 Report attached as Exhibit 3 of the affidavit of Kenneth Delaney submitted in support ofplainliffs 1110Vll1gapers). The information set forth in the report was allegedly derived, not from the ll1jured p employee Tcxiera. but from his immediate superVIsor, who is also an employee of the pJaintiff(see tjj 19 of the Af1idavit of Kenneth .T. Delaney submitied in support or the plaintiff s moving paper). Immediately [* 3] Delaney Assoc. v Regan Agency. InL et. al. Index No. 1032-12 Page 3 following its preparation, the report was allegedly forwarded to defendant Regan, the insurance agent of the plaintiff. While defendant Regan allegedly timely notified the Workers' Compensation Board ofTexiera· s accident, it allegedly failed to timely notify either the plaintiffs general liability insurer, Arch Insurance Company, or defendant National, the plaintiffs automobile liability insurer. In May 01'20 I0, Texicra filed suit against the City and the utility, Con-Edison, seeking recovery of money damages for the injuries allegedly sustained in the fall on Allen Street on October 9, 2009. Therein, Texicra alleged that he was a pedestrian walking on Allen Street when "he was caused to trip and/or fall as the result of large pothole/depression/uneven pavement" (see "iI2S of Texiera's Complaint attached as Exlubit 3 to the atlirmation of attorney Kroeger submitted in support of plaintiff's moving papers). By the tIme of the institution ofTexiera's lawsuit by the filing on May 21, 2010, the City had tendered Texiera's clall'l1to the plaintitlby correspondence dated May 3, 201 0, therein demanding both a defense and indemni ty from the plaintiff. On May 4,2010, the plaintiff notified defendant Regan ofTexiera '$ claim against the City indemnitees. On May 4.,20 I O. defendant Regan allegedly tendered the claim to Arch Insurance Company, who promptly denied coverage on the grounds of exclusions. late notice, no coverage and others reserved in it:; correspondence dated May 7, 2010. Following the City's issuance to Arch of a direct demand for a defense in June of 201 O. the plaintiff retained counsel to provide a defense to the City defendants in the Tcxiera action. Defendant, National Fire and its parent company, defendant CNA, were notified of Texicra's accident by defendant Regan on July 20, 20 I O. Therein, Regan agents described the accident as occurring while unloading supplies from a work truck. An acknowledgment of its receipt of such notice was issued by CNA on July 21, 201 O. Dyeorrespondence dated August 16,2010, CNA on behalfofNational, advised that it was investigating the facts underlying the claims and that all rights for denial of coverage were reserved (see Exhibit G attached to affirmation of Nation aI's counsel submitted in opposition to plaintiff's motion). On June 7,20 It, the attorneys retained by the plaintiff to provide a defense to the City defendants in the Texiera action demanded that National Fire and/or CNA provide such delense to the City defendants therein suggesting that the accident might have been the result of a covered occurrence, By letter dated, September 17, 2011, CNA on behal fof defendant National Fire, declined to provide such defense to the City defendants on several grounds, including no coverage for the occurrence and insufJieient evidence as to the City defendants' status as additional insureds (see Exhibit 7 attached to the affirmation of Kroeger submitted in SUPP0l1of plaintiff's moving papers). This action was cOl1lmenced by the plainti ffin January of20 12 (see Exhibit A attached to National'$ attorney's affirmation in opposition to the plaintiffs motion). Issue was joined with respect to defendant National by the service and filing of its answer in February of20 12. The court has not been apprised of the joinder of issue with respect to the other defendants, including defendant. eN!\. By the instant motion. the plaintiff demands partial summary judgment on so much of its First cause of action, wherein the plaintiff seeks a declaration that defendants. National and CNA. are obligated, under the 1erms of National's automobile insurance policy. to provide a defense to the City defendants in the Texiera action. In SUPPOTt of its motion, the plaintilr contends that because there is evidence that Texiera· s accident occurred during his ·'use'· of a vehicle insured by National. such use being TeXlCra·s alleged retri~val of equipment from a van, and evidence that National and/or CNA were on notice of such use. these delcndants are obligated to defend the City defendanls in the Texiera personal injury action. To SUPPOl1 thesl~contentions. the plaintilTrelies upon. among other things. the description of the accident set forth in the October t 3, 2009 C-2 Workers Compensation Report prepared by the plainti rr s partner and CNA's July 21, :~OtO acknowledgment of receipt of Regan's July 20, 2010 notice of Texicra. both of which noted the otr·loading of equipment from a work truck or van. and the June 7, 2011 correspondence from the City [* 4] Delancy Assoc. v Regan Agency, Inc. el. ClI. [ndex No. 1032-12 Page 4 dclcndants' defense counsel to CNA alleging evidence that Texicra' s injury was the result of a covcred occurrence (see § II. ~ C ol'plaintiffs memorandum of law in support of its motion and § 1,'[ A of reply mcmorandum). Defcndant National opposes the plaintiff's motion and cross moves for an accelerated judgment of this court declanng that National is not obligated to provide a defense to the plaintiffs indemnitees in the underlying TCXleraaction. Defendant CNA also opposes the plaintiffs motion therein demanding that the court award it reverse summary judgment on the plainti ff's First cause of action by declaring that CNA has no duty to defend the plaintiff's indcmnitees due to a lack of coveragc. For the reasons stated below, the 1110tlon-in-chiefby the plaintilTis denied, but a declaration of no duty to defend herein issues in favor or National pursuant to CPLR 3212(b). The cross motion by National Fire Insurance Company of Hartford is separately dcnied. It is well settled law that an insurer's duty to defend its insured is "exceedingly broad" (Colol1 v Aetna Life & Cas. In . ¢ ¢.Co., 66 NY2d 6, 8. 494 NYS2d 688 [1985]). An insurer will thus be called upon to provide a defense whenever the allegations of an underlying complaint in an action against an insured suggest a reasonable possibility of coverage (see BP Air Conditioning Corp. v One Beacoll IllS. Group, 8 NY3d 708, 714, 840 NYS2d 302 [2007]). An insurer may not, however, use a third party's pleadings as a "formal fortress" to avoid its contractual duty to defend the insured (see Fitzpatrick v American Honda MOlOrCo., 78 NY2d 61. 571 NYS2d 672 [1991]). Consequently, where the underlying complaint docs not allege a covered occurrence. but the insurer has actual knowledge of facts that indicate the lawsuit does invc,lve a covered event, "wooden application orthe 'four comers of the complaint' rule would render the duty to defend narrower than the duty to indemnify -clearly an unacceptable result" (1£1. at 78 NY2d 68). In this regard, it has been held that "the question is not whether the injured party can maintain a cause of action against the insured, but whether, he can state facts which bring the injury within thc coverage. [fhe stat~~ssuch facts the policy requires the insurer to defend irrespective of the insured's ultimate liability" (/llIernatiollal Paper Co. v Continental Cas. Co., 3S NY2d 322, 361 NYS2d 873 974], quoting Goldberg v Lumber Mut. Cas. Ins. Co. of New York, 297 NY 148,4 NYS 704 [19481). rl An insurer's duty to defend is thus triggered whenever the allegations of a complaint, liberally eon~itrued. suggest a reasonable possibility of coverage or where the insurer has actual knowlcdge of facts establishing a reasonable possibility of coverage (see Automobile filS. Co. of llllr(ford v Cook, 7 NY3d 131, 818 NYS2d 176 [20061; Fitzpatrick vAmerican Hondll Motor Co., 78 NY2d 61, supra; Bruckner Reillty, LLC v. County Oil Co., Inc., 40 AD3d 898, 838 NYS2d 87 [2d Dept 2007]). Conversely, the duty is not triggered where it may be concluded, as a matter of law, that there is no possible factual or legal basis upon which the insurer might eventually be held to be obligated to indemnify the claimant under any provision oftre insurance policy (see City of New York v EVllIlStOllIllS. Co.. 39 AD3d 153.830 NYS2d 299 f2d Dept 2007])_ Generally. it is lor the insured to establish coverage and for the insurer to prove that an exclusion in the policy applies to defeat coverage (see Consolidllted Edisoll Co. of N. Y. v AI/state IllS. Co.. 98 NY2d 208.218.746 NYS2d 622 [2002]: Barkan v New York Schools filS. Reciprocal. 65 AD3d 1061. 886 NYS2d 414 [2d Dept 2009]). An additional insured is a recognized term in insurance contracts. which means an entity enjoying the same protection as the namcd insured (see Regal Constr. Corp. v NatiolU11 UlIirJllFire IllS. Co., 15 NY3d 34. 904 NYS2d 338 t201 OJ: BPAirCollditiollillg Corp. v One Beacon/us. Group, 8 NY3d 708. slIpra). One claiming coverage as or on behalf of an additional insured must thus establish that such person or entity qualities as an additional insured under the subject policy and that th~ allegations of the complaint in the underlying action by the injured party fall within the scope of the coverage atTorded under the policy (see Ci(v of New York v Philadelphia JlUlem. III!s.Co.. 54 AD3d 709. [* 5] Delancy Assoc. v Regan Agency, Inc. el. al. Index No. 1032-12 Page 5 864 NYS2d 454 [2d Dept 2008]). Once these factors are established, the burden shifts to the insurer to establish the absence of coverage (see Stout v J East 66th St. Corp., 90 AD3d 898, 935 NYS2d 49 [2d Dept 2011 J; Matter of Allstate Ins. Co. v Berger, 47 AD3d 708, 710, 851 NYS2d 584 r2d Dept 2008])_ Here, the risk insured under the National automobile liability policy was the risk or injury arising out an ,ccident resulting from the ownership, maintenance or use of a covered vehicle. While terms, such as operation and use, have been construed as including the loading and off-loading ofa covered vehicle, where the accident occurs away from, and incidental to a covered vehlCle, the insured's duty to defend and ultimately indemnify must be closely related to the use the vehicle (see Elite Ambulette Corp. vAil City Ins. Co., 293 AD2d 643, 740 NYS2d 442 [2d Dept 2002]). Appellate case authorities have repeatedly instructed that "[aJlthough the [vehicle] Itselfnced not be the proximate cause of the injury ...[n]egligence in the use ufthe vehicle must be shown, and that negligence must be a cause of the injury" (Zaccari \I Progressive Northwestern Ins. Co, 35 AD3d 597, 827 NYS2d 204 [2d Dept 2006] [internal quotations omitted]; Somers Cent. School Dist. v Lumbermens Milt. Cas. Co., 6 AD3d 606, 607, 774 NYS2d 824 [2d Dept 2004]; Progressive Cas. Ins. Co. v Yodice, 276 AD2d 540, 714 NYS2d 715 l2d Dept 2000]). The determination of whether an accident has resulted from the use or operation of a covered vehicle has thus been held to require consideration of whether, among other things, the accident arose out of thc inherent nature of the vehicle and whether the vehicle itself produced the inj ury (see Empire Ins. Co. v Schliessman, 306 AD2d 5]2, 763 NYS2d 65[2d Dcrt 2003]). Upon application of the foregoing principles to the record adduced on the instant motions, the court finds that the plaintiff failed to establish coverage under the National policy. Not disputed is the fact that neither the allegations of the complaint served in the underlying Texiera action against the City defendants, nor ['henotice of claim which preceded such complaint, allege facts that suggest a reasonable possibility of covl~rage under the National policy (see Serrano v Republic Ins. Co., 48 AD3d 665, 852 NYS2d 288 [2d Dert 200SJ; Belsito v State Form Mot. 1m. Co., 27 AD3d 502, S] I NYS2d 762[2d Dert 2006]) In both the notice of claim and the complaint served by Texiera in connection with his suit against thc City defendants and Con Edison, vehicle involvement is nowhere mentioned as the facts underlying the claims advanced therein by Texiera sound only in premises liability claims due to a surface defect on a roadway which allegedly caused a fall and resulting injuries. A possibility of coverage under National's automobile liability policy is thus not discernible from Texiera's complaint. Under these circumstances, it was incumbent upon the plaintiff to establish that the insurer defendants had actual knowledge offacts indicating that the Texiera lawsuit does involve a covered event (see Fitzpatrick IIAmericall Honda Motor Co., 78 NY2d 61 ,supra). A review of the submissions adduced on the instant application reveals, however, a failure on the part of the plaintiff to satisfy this burden. The record is devoid of proof in evidentiary form ofTexiera's ability to state facts "which bring the injury within the ,~overage" (see International Paper Co. v Continental Cas. Co., 35 NY2d 322, supra) and that the insurer defendants had knowledge of any such facts (see Fitzpatrick v American flollda Motor Co.. 7S NY2d 61, supra). UnaVaIling is the plaintiffs reliance upon the descriptions of the Texiew's accident set fOl1hin the C-2 Workers' Compensation Report the description proVIded by defendant Regan's July 20, 2010 notice to CNA and CNA's July 21 2010 response acknowledging receipt there01~and/or the description set forth in defense counsel's June 7,20 II letter to CNA urthe physician's affirmation attached thereto, all of which included references to the unloading ofa vehicle. There is no evidence that any orthe facts that comprise thes,~ descnptions were stated by Texiera, including the description of the accident set forth lJ1 thc phy~;ician's affirmation attached to defense counsel's June 7, 2011 correspondence. [* 6] Delaney Assoc. v Regan Agency. Ine. el. 01. Index No_ 1032-12 Page 6 This court finds that un insurer may not be charged v...-ith actual knowledge or facts of a possible covered event simply by reason of its receipt of a notice or claim. prepared by one other than the injured claioant. which describes an occurrence as one within the sphere of coverage under a policy. To hold othe:wise would require that a defense be provided simply because an accident is described by one. without personal knowledge of the facts, as an event which possibly falls within the coverage provisions ora policy. Even if the plaintiffcould successfully charge defendants National and CNA with kno\.vledge orfacts connoting possible coverage by reason ofthe plaintiffs description ofTexiera 's accident as occurring while Texiera was unloading equipment from a covered vehicle. the record is devoid or any evidence tending to establish negligence in the use of the vehicle and that such negligcnce was a cause of the injury (see Zaccari v. Progressive Northwestern 111s.Co.. 35 A D,3d 597, sllpra; EliteAmhtllette COI]}.vAll City IllS. Co.. 193 AD2d 643, supra; see also Progressive Northeastern 1m. Co. v Penll-Star IllS. Co., 89 AD3d 547, 934 NYS2d 93 [1st Dept 20111). The Cailureto establish any nexus between the ownership, maintenance or use ortbe vehicle is fatal to the plaintiffs claims for an accelerated judgment based upon the insurer deCendants' purported "actual knowledge" of facts indicating a covered event. Rejected as unmeritorious are the plaintiff's claims of an entitlement to summary judgment on the alternate grounds advanced, namely, that defendants National and/or CNA waived their rights to disclaim coverage due to their failures to comport with the requirements for disclaimers .set forth in the applicable provisions of Insurance Law § 3420. It is well established that "where the issue is the existence or nonexistence of coverage (e.g., the insuring elause and exclusions), the doctrine of waiver is simply inap?licable" (Albert J. Schiff Assoc., Inc. v Flack, 51 NY2d 692, 435 NYS2d 972 [l980J). Issuance of a disclaimer is thus unnecessary when a claim falls outside the scope of a policy's coverage ponion, since ··req'.liring payment of a claim upon failure to timely disclaim would create coverage where it never existed" (Worcester 1m. Co. v Betteuhauser, 95 NY2d 185.712 NYS2d 433 [2000J; see Markevics v Liberty Milt. /lu. Co., 97 NY2d 646, 735 NYS2d 865 [2001]; Zappone v Home Ins. Co., 55 NY2d 131, 134,447 NYS2d 9111 I982J; lfasbaui v Natiollwide Milt. IWi. Co.,_AD3d _, 2012 WL 3204669 12d Dept 2012]; York Restoration Corp. v Solty's COllstr., IIlC., 79 AD3d 861, 914 NYS2d 178 r2d Oept 2010])_ Likewise rejected are any claims that National and/or CNA should be estopped from disclaiming coverage (see Insurance Law ~ 3420). In view of the foregoing, the plaintiff's motion (#001) for partial summary judgmcnt on its claims lor ajudicml declaration that dc1Cndants National and/or CNA are obligated to provide a defense to the City defendants in the underlying Texiera action IS denied. The motion is also denied as to defendant CNA on the alternate ground of a failure on the part of the plaintifT to attach a copy or any answer by CNA and the absence of a copy of such answer in the opposing papers of CNA (r/, AWllol1 Gardens ReJUlbilitation & lIeaIth Care v MorseI/o. 97 AD3d 611.948 NYS2d 377 r2d Dept 2012]; Crossett v Willg Farm,Illc., 79 I\IX~d 1334.912 NYS.2d 751 rJd Dcpt 2010J). Since the record adduced on the instant motion reveals that. as a matter oflaw. neither National nor CNA are chargeable with a dUlYto defend the City defendants in the underlying Texiera action due to the absence of a reasonable possibility of coverage of Texiera's accident under the tem1S of the National automobile liability policy. the court hereby declares that defendants National and CNA have no obligation to provide such defense. The cross motion by defendant. National, for summary judgment against the plaintiff on its First cause of action to the extent ol"determining that National is not required to defend nor indemnify the plainti IT or its indemnitees in the Texiera action is denied, The cross motion is singularly predicated upon claims that the National is not required to defend the plaintiirs indemnitees due to the issuunce ofa late notice of the clmm by the plainti and/or the additional insureds. namely the City defendants. Although the motion app~ars to be supported by an affidavit by an agent of cross moving defendant National Fire, said aftidavit rc [* 7] Delaney Assoc. v Regan Agency. Inc. et. al. Index No. 1032-12 Page 7 dots not include evidence that the affiant was sworn by a notary. The cross motion is thus not supported by the affidavit called for by CPLR3212(b). nor is it supported bYIhe other proofcontemplated by such rule. Accordingly, the court finds the moving papers to be insufficient to establish National's entitlement to a summary judgment on the grounds advanced in the cross moving papers, which differ markedly from those Najonal advanced in opposition to the plaintitf's motion-in-chief For these reasons, and in view orthe court's declaration that National is not obligated to provide the plaintiffs indemnitecs with a defense in the Tcxicra action due to the absence of coverage under the terms of the National automobile policy as set forth ah()vc, the court denies the cross motion (#002) by National for summary judgment against the plaintiff on its First cause or action. Finally, the court denies the demand for reverse summary judgment interposed in the papers submitted by defendant CNA to the plainti ffs motion-in-chiet: as the court is without a copy of an answer served by CNA to the plaintiff's complaint as required by CPLR 3212(h).

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