The City of New York et al v. Western Heritage Insurance Company

Filing 40

MEMORANDUM & ORDER: Western Heritage's 25 motion for summary judgment is granted in part, and plaintiffs' 27 cross-motion for summary judgment is denied. Ordered by Judge Raymond J. Dearie on 3/6/2015. (Chee, Alvin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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THE CITY OF NEW YORK, SCOTT V.
PAULINO, and DRAGONETTI
BROTHERS LANDSCAPING NURSERY
AND TREE CARE, INC.,

MEMORANDUM & ORDER

Plaintiffs,
- against -

13 CV 4693 (RJD) (JO)

WESTERN HERITAGE INSURANCE
COMPANY,
Defendant.

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DEARIE, District Judge
In this declaratory judgment action, the City of New York (the "City"), Dragonetti
Brothers Landscaping Nursery and Tree Care, Inc. ("Dragonetti"), and Scott V. Paolino
("Paolino") 1 seek an order that they are entitled to a defense and indemnity under a commercial
general liability policy insured by Western Heritage Insurance Company ("Western Heritage"),
with respect to an underlying automobile accident. The parties have cross-moved for summary
judgment on whether the general liability policy covers the underlying automobile accident, and
whether Western Heritage validly disclaimed coverage. For the reasons set forth below, Western
Heritage's motion for summary judgment is granted in part.
BACKGROUND
This declaratory judgment action arises out of an automobile accident that occurred on
May 13, 2010 between an automobile that was owned by non-party John Battocchio
("Battocchio") and a dump truck owned by Dragonetti. Battocchio was driving northbound on
While the caption on the complaint spells the plaintiff's name "Paulino," the
parties' briefs and the supporting factual materials all spell his name "Paolino," and therefore
this opinion uses that spelling.

the Hutchinson River Parkway near the Westchester Avenue exit in the Bronx when his vehicle
collided with the rear of the dump truck, which was being driven by Paolino. Battocchio died as
a result of the accident, and his estate subsequently commenced an action on July 15, 2011
against Dragonetti, the City and Paolino captioned Estate of John W. Battocchio v. Scott V.
Paolino et al., Index No. 306330/11 (N.Y. Sup. Ct.). The complaint in that action alleges that
Paolino, who was acting as an employee ofDragonetti and as an agent of the City, "was
operating the ... dump truck ... in a negligent, dangerous, [and] unreasonably unsafe manner."
The complaint also alleges that Dragonetti and the City "were reckless, careless and negligent in
the maintenance, hiring, operation, management and control of the landscaping service
performed on ... May 13, 201 O" and in "the operation, supervision, maintenance, management
and control of the Dragonetti motor vehicle operated by Scott Paolino." The Battocchio action
remains pending.
Prior to the accident, Western Heritage issued a commercial general liability policy to
Dragonetti in effect for the policy period February 15, 2010 through February 15, 2011, with
limits of $1 million per occurrence and a $2 million general aggregate, subject to a $5,000 per
claim deductible. Pursuant to section II(2)(a) of the policy, Paolino as an employee of
Dragonetti is an insured under the policy. Additionally, in accordance with a September 23,
2009 contract with the New York City Department of Parks & Recreation Capital Projects
Division, Dragonetti contends, as further discussed below, that the City is an additional insured
under the policy.
The policy provides in section I(l)(a) that Western Heritage "will pay those sums that the
insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property
damage' to which this insurance applies .... However, [Western Heritage] will have no duty to

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defend the insured against any 'suit' seeking damages for 'bodily injury' or 'property damage' to
which this insurance does not apply." As set forth in section I(2)(g) of the policy, coverage does
not apply to:
'Bodily injury' or 'property damage' arising out of the ownership,
maintenance, use or entrustment to others of any . . . 'auto' . . . owned or
operated by or rented or loaned to any insured....
This exclusion applies even if the claims against any insured allege negligence
or other wrongdoing in the supervision, hiring, employment, training or
monitoring of others by that insured, if the 'occurrence' which caused the
'bodily injury' or 'property damage' involved the ownership, maintenance, use
or entrustment to others of any ... 'auto' ... that is owned or operated by or
renter or loaned to any insured.
This exclusion does not apply to: ... (3) Parking an 'auto' on, or on the ways
next to, premises you own or rent, provided the 'auto' is not owned by or
rented or loaned to you or the insured ....
On July 7, 2010, attorney Howard Newman, who had been retained to represent
Dragonetti and Paolino, e-mailed the retail broker for the Western Heritage policy, advising the
broker that a pre-suit claim had been made by the Battocchio estate. On July 12, 2010, the retail
broker forwarded to Western Heritage certain documents received from Mr. Newman, including
a notice of occurrence/claim, a copy of the police report from the accident, a copy of
Battocchio's death certificate, and a copy of a letter from Mr. Newman to the Battocchio estate
indicating that he represented Dragonetti and Paolino. Claim notes prepared by Western
Heritage's claims analyst confirm that Western Heritage first received notice of the claim on July
12, 2010, and indicate that the claim involved an "auto collision" between Battocchio and
"Scotty Paoino [sic], Dragonetti Bros Dump Truck." The claim notes also state that it was the
claim analyst's plan to call the insured the next day to "verify that [this] is [an] auto accident"
and that "we do not have coverage." By letter dated July 12, 2010, Western Heritage notified
Dragonetti that it had initiated its review of the claim.

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On July 14, 2010, Dennis J. Curran, Western Heritage's claims analyst, unsuccessfully
attempted to verify the facts of the claim. Mr. Curran contacted Dragonetti, but the Dragonetti
employee handling the claim was out of the office until July 19, 2010. Mr. Curran also contacted

Mr. Newman on July 14, but he was also out of the office. The parties dispute when Mr. Curran
ultimately spoke to Mr. Newman. According to the plaintiffs, Mr. Newman called Mr. Curran
back on July 16, 2010, and verified the facts of the accident. According to Western Heritage,
Mr. Curran and Mr. Newman did not speak until July 29, 2010, at which point in time Mr.
Newman verified facts relating to the accident, notified Mr. Curran that a notice of claim had
been filed against the City, and indicated that he would forward the City's notice to Mr. Curran.
The claim notes for July 29 indicate that Mr. Curran planned to "hold coverage analysis ... until
review [of the City's] tender and possibly [the] lawsuit." On or about August 9, 2010, Western
Heritage received the Battocchio estate's claim that was made to the City. The Western Heritage
claim notes reflect receipt of this information and indicate that it now had "enough info[rmation]
to issue [a] denial of coverage [on the basis of the] auto exclusion."
On August· 13, 2010, Western Heritage mailed a letter to Dragonetti denying coverage
under the policy pursuant to the 'auto' exclusion contained in section I(2)(g) of the policy. The
letter was not addressed to the City or Paolino. Additionally, in response to a fax sent by the
City Law Department on August 12, 2010 requesting coverage as an additional insured under the
policy, Western Heritage advised the City that the "policy excludes accidents involving motor
vehicles that operate on roadways" and since Western Heritage "declined coverage to the
Insured" it must "reject [the City's] tender of defense in this case." On August 2, 2011,
Dragonetti' s counsel forwarded a copy of the complaint filed in the Battocchio action to Western

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Heritage. Western Heritage again denied coverage pursuant to the 'auto' exclusion on August
11, 2011. That letter was not sent to the City or Paolino.
Plaintiffs filed this action on August 20, 2013, seeking a declaration that the Western
Heritage policy covers the claim. Following the completion of discovery, the parties crossmoved for summary judgment.
DISCUSSION
Under Fed. R. Civ. P. 56(a), summary judgment may be granted only if all the
submissions taken together "show[] that there are no genuine issues of material fact and that the
moving party is entitled to judgment as a matter of law." Miller v. Wolpoff & Abramson, L.L.P.,
321F.3d292, 300 (2d Cir. 2003). "In deciding whether there is a genuine issue of material fact,
[this Court] must interpret all ambiguities and draw all factual inferences in favor of the
nonmoving party." Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006). The parties have
cross-moved for summary judgment on the issue of whether plaintiffs are entitled to a defense
and indemnity under the Western Heritage policy. The Court must, therefore, determine whether
the 'auto' exclusion in the policy bars coverage for the underlying accident, and, if it does,
whether Western Heritage properly disclaimed coverage to plaintiffs.
A.

The 'Auto' Exclusion

Western Heritage has moved for summary judgment on the grounds that the 'auto'
exclusion contained in section I(2)(g) of the policy unambiguously bars coverage for the
underlying accident. Plaintiffs argue that the exclusion does not apply or, at a minimum, that it
is ambiguous. The parties agree that but for the exclusion the policy would cover the accident.
The Court must first decide, as a threshold matter, whether the exclusion at issue is
unambiguous as a matter of law. See Parks Real Estate Purchasing Gm. v. St. Paul Fire and

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Marine Ins. Co., 472 F.3d 33, 42 (2d Cir. 2006) ("[T]he initial interpretation of a contract is a
matter oflaw for the court to decide.") (internal quotation marks and citation omitted). If the
Court finds the provision in question to be unambiguous, it must then interpret it in light of its
"plain and ordinary meaning." 10 Ellicott Square Court Com. v. Mountain Valley Indem. Co.,
634 F.3d 112, 119 (2d Cir. 2011) (quoting Essex Ins. Co. v. Laruccia Constr., Inc., 71 A.D.3d
818, 898 N.Y.S.2d 558, 559 (2d Dept. 2010)). And while plaintiffs "bear[] the burden of
showing that an insurance coverage covers the loss," Western Heritage "bears the burden of
showing that an exclusion applies to exempt it from covering a claim." MBIA Inc. v. Fed. Ins.
Co., 652 F.3d 152, 158 (2d Cir. 2011). Lastly, any doubts must be resolved in favor of the
plaintiffs. Id.
The 'auto' exclusion contained in the first paragraph of section I(2)(g) of the policy bars
coverage for bodily injury "arising out of the ownership, maintenance, use or entrustrnent to
others of any ... 'auto' ... owned or operated by ... any insured." The Court finds this
language to be unambiguous, consistent with other courts that have concluded that similar
automobile exclusions are "clear and unambiguous and allow[] no opportunity for construction
as a question of fact." New Hampshire Ins. Co. v. Jefferson Ins. Co. of New York, 213 A.D.2d
325, 327, 330, 624 N.Y.S.2d 392, 394, 396 (1st Dept. 1995); see also Tudor Ins. Co. v.
Golovunin, No. 07 CV 4792 (KAM), 2013 WL 5437025, at *6 (E.D.N.Y. Sept. 27, 2013)
(automobile exclusion was unambiguous); U.S. Specialty Ins. Co. v. LeBeau, Inc., 847 F. Supp.
2d 500, 505 (W.D.N.Y. 2012) (same); Ruggerio v. Aetna Life & Cas. Co., 107 A.D.2d 744, 745,
484 N.Y.S.2d 106, 107 (2d Dept. 1985) (same). This portion of the 'auto' exclusion plainly
precludes coverage for the underlying accident since the complaint in the Battocchio action
alleges a bodily injury to Battocchio arising out of Paolino's operation of a dump truck. See

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Tudor Ins. Co., 2013 WL 5437025, at *6 ("Because it is undisputed that the fatal car accident
was the act giving rise to liability ... the Auto Exclusion shields plaintiff from any obligation to
defend or indemnify any person or entity in connection with the ... accident."); U.S. Specialty
Ins., 847 F. Supp. 2d at 505 ("It is well settled under New York law that the term 'arising out of
is afforded a broader meaning" and an auto exclusion "will extend to any injuries 'originating
from, incident to, or having a connection with the use of the vehicle.").
The second paragraph of the 'auto' exclusion further provides that:
This exclusion applies even if the claims against any insured allege negligence or
other wrongdoing in the supervision, hiring, employment, training or monitoring
of others by that insured, if the 'occurrence' which caused the 'bodily injury' or
'property damage' involved the ownership, maintenance, use or entrustment to
others of any ... 'auto' ... that is owned or operated by or rented or loaned to
any insured.
The parties dispute the effect ofthis paragraph. W estem Heritage argues that it confirms the
scope of the first paragraph of the exclusion: the exclusion applies "even if" the claim is pied as
one of negligent hiring or supervision. Plaintiffs, on the other hand, argue that because this
paragraph. lists "finite types of claims" that are excluded, it narrows the scope of the exclusion
only to those claims expressly referenced. Therefore, according to the plaintiffs, the 'auto'
exclusion does not apply to the allegations in the Battocchio action that Dragonetti and the City
were negligent in the performance of landscaping services, or, at a minimum, the exclusion is
ambiguous. Plaintiffs are mistaken.
The second paragraph of the 'auto' exclusion unambiguously clarifies the breadth of the
exclusion, it does not limit it. The meaning of the phrase "even if," as defined in the Oxford
English Dictionary, is "despite the possibility that" or "no matter whether," and accordingly, the
second paragraph provides that the 'auto' exclusion applies regardless of the theory of
negligence that is alleged. This interpretation of the exclusion is bolstered by the fact that the
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'auto' exclusion does indicate, in the third paragraph, what circumstances the "exclusion does
not apply to." Where, as here, the policy carves out certain circumstances from the coverage
exclusion, those carve-outs imply the omission of other carve-outs from the exclusion, such as
the one suggested by plaintiffs. See In re New York City Asbestos Litig., 41A.D.3d299, 302,
838 N.Y.S.2d 76, 80 (1st Dept. 2007).
The 'auto' exclusion as a whole unambiguously precludes coverage for the underlying
accident. It is well established that "it is the act giving rise to liability that is determinative, not
the theories of liability alleged.... the mere fact that [an insured] could be found liable on [an]
independent theory of recovery does not alter the operative act giving rise to the accident,
namely, the use of [an insured's] vehicle." U.S. Fire Ins. Co. v. New York Marine & Gen. Ins.
Co., 268 A.D.2d 19, 21, 706 N.Y.S.2d 377, 378 (1st Dept. 2000); see also New Hampshire Ins.,
213 A.D.2d at 330, 624 N.Y.S.2d at 395 ("whatever theory ofliability the resourceful attorney
may fashion from the circumstances of a client struck by an automobile, it remains that the
immediate and efficient cause of the injury is, in fact, the automobile"). Here, regardless of
whether the theory of liability in the underlying accident is negligence, negligent hiring or
supervision, or negligence in the provision of landscaping services, the act giving rise to liability
- an automobile accident - is the same. Therefore, as a matter of law, this Court concludes that
the 'auto' exclusion contained in section I(2)(g) of the policy bars coverage for the Battocchio
accident.
B.

Disclaimer of Coverage

Having concluded that the 'auto' exclusion bars coverage under the policy, this Court
must consider whether Western Heritage effectively disclaimed coverage. Pursuant to New
York Insurance Law § 3420(d), an insurer "is obligated to give written notice of a disclaimer of

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coverage 'as soon as is reasonably possible,' measured from the time that the insurer has
sufficient information to disclaim coverage in good faith." Webster ex rel. Webster v. Mount
Vernon Fire Ins. Co., 368 F.3d 209, 216 (2d Cir. 2004) (quoting N.Y. Ins. L. § 3420(d)) (internal
citation omitted). A "delay occasioned by a 'reasonably prompt, thorough, and diligent
investigation of the claim' does not render the insurer's disclaimer untimely, because an
investigation is often necessary to determine whether there is any basis for disclaiming
coverage." Id. at 216-17 (quoting In re Prudential Prop. & Cas. Ins. Co., 213 A.D.2d 408, 408,
623 N.Y.S.2d 336, 336 (2d Dept. 1995)); see also First Fin. Ins. Co. v. Jetco Contracting Com., 1
N.Y.3d 64, 69, 801 N.E.2d 835, 839 (2003) (noting that good-faith investigation into a claim
often excuses delay in providing disclaimer). But an insurer that fails, without good reason, "to
provide the insured with timely notice of its disclaimer or denial of coverage on the basis of a
policy exclusion ... will be estopped from disclaiming liability or denying coverage." Moore v.
Ewing, 9 A.D.3d 484, 487, 781N.Y.S.2d51, 54 (2d Dept. 2004). "While 'normally the question
whether a notice of disclaimer of liability or denial of coverage has been sent as soon as is
reasonably possible is a question of fact which depends on all the facts and circumstances,
especially the length of and the reason for the delay,' in the 'exceptional case' this question may
be decided without the benefit of a jury." U.S. Underwriters Ins. Co. v. City Club Hotel, LLC,
369 F.3d 102, 107 (2d Cir. 2004) (quoting Hartford Ins. Co. v. Nassau Cnty., 46 N.Y.2d 1028,
1030, 389 N.E.2d 1061, 1062-63 (1979)).
Based upon the record, the Court cannot conclude that this is an "exceptional case" where
the timeliness of Western Heritage's disclaimer may be decided as a matter of law. First, there is
a material dispute of fact as to the timeliness of the disclaimer to Dragonetti. Western Heritage
was first notified of a potential claim on July 12, 2010, and it sent a denial letter to Dragonetti on

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August 13, 2010. Plaintiffs argue that the 32-day period between when Western Heritage
learned of the claim and denied it is an unreasonable delay because the basis for denial was
obvious on July 12, 2010. Western Heritage, however, argues that it needed time to verify the
basis for issuing a denial, and disclaimed coverage shortly after verifying the facts of the claim.
Plaintiffs counter that if Western Heritage needed to verify facts, those facts were verified by Mr.
Newman on July 16, 2010. Western Heritage, on the other hands, denies that the July 16th call
took place. This is not a record suitable for summary judgment. There is a material dispute of
fact as to whether Western Heritage was in a position to deny coverage on the basis of the
information it received on July 12'h, or whether it needed to conduct an investigation to verify the
facts of the underlying accident. There is also a dispute as to whether the July 16'h call took
place, and, if it did, whether the resulting 28-day delay in denying coverage was unreasonable.
And even if Western Heritage had sufficient facts to deny coverage on July 12'h, the New York
Court of Appeals has "declined to provide a 'fixed yardstick' against which to measure
reasonableness of a delay in disclaiming coverage," Cont'! Cas. Co. v. Stradford, 11 N.Y.3d 443,
449, 900 N.E.2d 144, 148 (2008), and this Court will not deem a 32-day delay unreasonable as a
matter of law.
Second, for similar reasons the Court cannot conclude as a matter oflaw that Western
Heritage failed to disclaim coverage to Paolino as required by section 3420(d). Plaintiffs argue
that Western Heritage never sent a disclaimer of coverage to Paolino. Western Heritage argues
that it was relieved of this obligation because Paolino never provided it with a notice of a claim.
Under New York law, an insurer's obligation to cover a loss is not triggered unless the named
insured gives timely notice of the loss. See U.S. Underwriters Ins. Co. v. Kum Gang, Inc., 443
F. Supp. 2d 348, 360 (E.D.N.Y. 2006); Travelers Ins. Co. v. Volmar Const. Co., 300 A.D.2d 40,

10

44, 752 N.Y.S.2d 286, 289-90 (1st Dept. 2002). This duty extends to "additional insureds" under
any policy, and generally notice by one insured will not be imputed as notice by another. See
Volmar Const., 300 A.D.2d at 44, 752 N.Y.S.2d at 289; City ofNew York v. Lexington Ins. Co.,
735 F. Supp. 2d 99, 111-12 (S.D.N.Y. 2010). An insured's failure to provide notice relieves an
insurer of its obligation "to send a separate notice of disclaimer." Webster, 368 F.3d at 217.
There are, however, situations in which timely notice by one insured may be deemed notice by
another insured. "Where two or more insureds are defendants in the same action, notice of the
occurrence or of the lawsuit provided by one insured will be deemed notice on behalf of both
insureds only where the two parties are united in interest or where there is no adversity between
them." Lexington Ins. Co., 735 F. Supp. 2d at 112 (quoting 23-08-18 Jackson Realty Associates
v. Nationwide Mut. Ins. Co., 53 A.D.3d 541, 543, 863 N.Y.S.2d 35, 37 (2d Dept. 2008)). Here,
while Paolino did not provide separate notice of a claim, as an employee of Dragonetti he is
united in interest with his employer (and represented by the same counsel), and therefore
Dragonetti' s notice to Western Heritage is deemed notice on behalf of both plaintiffs. See
Lexington Ins., 735 F. Supp. 2d at 112 (employee was united in interest with his employer);
Amaya v. Garden City Irrigation, Inc., 645 F.Supp.2d 116, 122 (E.D.N.Y.2009) ("The most
frequently cited relationship creating a unity of interest is vicarious liability, such as between an
employer and employee or a corporation and its agents.").
Plaintiffs argue, then, that since Western Heritage did not send a separate disclaimer to
Paolino, it is estopped from now refusing coverage. Not quite. In Zappone v. Home Ins. Co., 55
N.Y.2d 131, 137, 432 N.E.2d 783, 786 (1982), the Court of Appeals stated that literal
interpretation of section 3420(d) is inappropriate "when to do so will occasion great
inconvenience, or produce inequality, injustice or absurdity." The position advocated by

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plaintiffs would produce such an inequitable or absurd result. If Paolino is not required to
provide separate notice to Western Heritage because he is unified in interest with Dragonetti,
then Western Heritage is likewise not required to provide a separate disclaimer to Paolino when
it has disclaimed coverage to Dragonetti. See Excelsior Ins. Co. v. Antretter Contracting Com.,
262 A.D.2d 124, 127-28, 693 N.Y.S.2d 100, 104 (!st Dept. 1999) ("Failure to serve a formal
notice on the nominal party in interest does not render ineffective the denial of coverage where,
under the circumstances, the party who received the notice was expected to forward it to the
nominal party and had undertaken to protect the nominal party's rights."). In short, Paolina's
claim lives and dies with Dragonetti: if a jury determines that Western Heritage is estopped from
disclaiming coverage to Dragonetti, that finding would apply to Paolino as well.
Third, there is also a material dispute of fact as to whether Western Heritage's disclaimer
to the City was timely. As a preliminary matter, Western Heritage argues that the City is not an
additional insured under the policy, and therefore it was not required to disclaim coverage to the
City. Western Heritage is incorrect in this regard. Dragonetti agreed in writing to make the City
an additional insured under the policy, and pursuant to the "Additional Insured" endorsement
appended to the policy, the policy covers additional insureds for vicarious liability they have for
acts of the insured. Western Heritage argues that since the underlying action is still pending it is
not possible to know now whether the City will be held liable on any theory besides a vicarious
liability theory. But under New York law, "[i]f a complaint contains any facts or allegations
which bring the claim even potentially within the protection purchased, the insurer is obligated to
defend." BP Air Conditioning Com. v. One Beacon Ins. Gm., 8 N.Y.3d 708, 714, 871 N.E.2d
1128, 1131 (2007) (quoting Technicon Electronics Com. v. Am. Home Assur. Co., 74 N.Y.2d
66, 73, 542 N.E.2d 1048, 1050 (1989)); see also City of New York v. New York Marine & Gen.

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Ins. Co., 122 A.D.3d 513 (1st Dept. 2014) ("Since these allegations are potentially covered by
the []policy issued to [the insured], in which the City was named as an additional insured 'only
with respect to operations performed by or on behalf of [the insured] for which the [City] has
issued a permit,' [the insurer] is obligated to defend the City in the underlying action.").
Accordingly, the Court concludes that, at this juncture, Western Heritage was required to provide
timely notice of disclaimer to the City.
There is, however, the question of whether that disclaimer to the City was timely.
Plaintiffs argue that Western Heritage learned of the City's tender on July 16, 2010, and waited
28 days to disclaim coverage. Western Heritage argues that it did not learn of the City's tender
until July 29, 2010, and did not receive documentation of the City's claim until August 9, 2010,
and therefore the disclaimer sent on August 13, 2010, was not untimely as a matter oflaw. As
there is a material dispute of fact as to when Western Heritage learned of the City's tender and
had sufficient information to issue a disclaimer, and whether the time it took to disclaim
coverage was reasonable, summary judgment on this issue is denied.
Lastly, plaintiffs also argue that the disclaimer that was sent to the City was not
sufficiently specific, as required by section 3420(d). In order to comply with section 3420(d),
"the notice of disclaimer must promptly apprise the claimant with a high degree of specificity of
the ground or grounds on which the disclaimer is predicated." Gen. Acc. Ins. Gm. v. Cirucci, 46
N.Y.2d 862, 864, 387 N.E.2d 223, 225 (1979). Here, the disclaimer sent to the City stated:
This policy excludes accidents involving motor vehicles that operate on
roadways. We have declined coverage to the Insured and thus respectfully reject
your tender of defense in this case.
This disclaimer is sufficiently specific so as to comply with the requirements of section 3420(d)
as it apprised the City that Western Heritage was disclaiming coverage on the grounds of the

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'auto' exclusion. See QBE Ins. Corp. v. Jinx-Prooflnc., 22 N.Y.3d 1105, 1107, 983 N.Y.S.2d
465, 466 (2014). Plaintiffs identify no support for their position that Western Heritage needed to
quote the terms of the policy to the City. As a matter oflaw, the disclaimer is sufficiently
specific.
C.

Excess Insurance

As a final matter, Western Heritage moves for summary judgment on the grounds that its
coverage should be treated only as excess insurance. The Court will not resolve this issue at this
time. There remains an open factual question as to whether Western Heritage timely disclaimed
coverage to the plaintiffs. If it did, there is no coverage under the policy and this issue is moot.
And even if Western Heritage failed to timely disclaim coverage, this Court will not adjudicate
the allocation of costs among insurers until all other insurers are parties to the action. See Turner
Const. Co. v. Kemper Ins. Co., 341 F. App'x 684, 687 (2d Cir. 2009) (citing BP Air
Conditioning Com., 8 N.Y.3d at 716).
In sum, for the foregoing reasons, Western Heritage's motion for summary judgment is
granted in part, and plaintiffs cross-motion for summary judgment is denied.
SO ORDERED.
Dated: Brooklyn, New York
March 6, 2015

/s/ Judge Raymond J. Dearie
RA=\it)N[LPEARIE
United States District Judge

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