[co-author: Paulina Economou*]

INTRODUCTION

Obtaining additional insured coverage is one critical tool in the risk transfer toolbox. Owners and contractors on construction projects routinely ask “downstream” contractors and subcontractors to sign contracts wherein the latter agrees to provide the owners and contractors with additional insured coverage for accidents or damages resulting from the performance of their work on the project. Similarly, owners routinely ask tenants in lease agreements to provide the owners with additional insured coverage for accidents resulting from the use of the premises. The purpose of that coverage is to transfer the risk to the entity closest to controlling the risk. Whether a party claiming to be an additional insured is actually entitled to additional insured coverage under another entity’s policy depends on the policy that was procured, whether it has an additional insured endorsement, and the scope of the coverage under that endorsement. The endorsement rather than the insurance procurement provision of the applicable contract or lease controls whether coverage is actually available.

Because additional insured coverage is integral to risk transfer, New York courts are constantly deciding issues related to additional insured coverage. In fact, if you performed a nationwide search on Lexis Nexis for 2020 cases where the term “additional insured” appears, there are 560 results. If you search only New York, the number is 224.

In July 2017, the New York Court of Appeals decided a seminal case impacting the scope of additional insured coverage when Burlington Ins. Co. v. NYC Tr. Auth., 29 N.Y.3d 313 (2017) was published. That decision has been analyzed by numerous motion courts and throughout the State’s four appellate divisions. Those decisions have attempted to resolve exactly what the Court of Appeals decided when it rendered its opinion in Burlington and the impact of that decision on both the duty to defend and indemnify those seeking additional insured coverage. The purpose of this article is to discuss some of these recent opinions in order to provide attorneys and insurance professionals with guidance regarding the scope of additional insured coverage, including when the duty to defend starts and ends.

BACKGROUND

In order to understand the impact that Burlington has had on additional insured coverage in New York, it is important to first understand exactly what the court did and did not decide in that litigation. Similarly, the facts are important. In Burlington, the New York Transit Authority contracted with Breaking Solutions to perform tunnel excavation work on a subway construction project. Pursuant to the terms of the contract, Breaking Solutions Inc. obtained a CGL policy from Burlington listing the New York Transit Authority, MTA New York City Transit, and New York City as additional insureds “only with respect to liability for ‘bodily injury,’ ‘property damages’ or ‘personal and advertising injury’ caused, in whole or in part, by:

1. [The Named Insured’s] acts or omissions; or
2. The acts or omissions of those acting on [the Named Insured’s] behalf.” ¹

The accident at issue was caused when a Breaking Solutions machine touched a live electrical cable buried in concrete causing an explosion and injuring a New York Transit Authority employee². The issue was whether various entities were entitled to additional insured coverage under the limitations of the endorsement and specifically, whether the accident was caused by Breaking Solutions’s acts or omissions. A majority of the New York Court of Appeals held that the language of the endorsement stating that the injury must be “caused, in whole or in part,” requires proximate causation, not merely “but for” causation.³

The Court of Appeals found the fact that the claims against Breaking Solutions in the underlying action had been dismissed was critical to the additional insured analysis. Discussing the facts of how the explosion occurred, the court explained that the Breaking Solutions machine touching the live wire was a “but for” cause of the explosion, but Breaking Solutions Inc. was not at fault in operating the machine and was thus not the proximate cause of the injuries⁴. Specifically, it had been the responsibility of the Transit Authority to disable the power prior to the work, which they failed to do. Thus, because the explosion was not caused by Breaking Solutions, Burlington had no obligation to indemnify any of the additional insureds.

The court did not make any findings regarding Burlington’s duty to defend any of the additional insureds because Burlington had defended the additional insureds and therefore the defense obligation was not at issue. Despite this, following the decision practitioners sought to argue that Burlington also altered the duty to defend by requiring that the putative additional insured first establish that the named insured’s conduct was the proximate cause of the accident before additional insured coverage is afforded. Thus far, New York courts have rejected reading Burlington as altering New York’s duty to defend jurisprudence as respects additional insureds.

An examination of New York’s recent additional insured cases also requires some background regarding the duty to defend standard in New York. In short, and very generally speaking, an insurer may not rely on “extrinsic facts,” or facts outside of the complaint in order to deny a duty to defend an insured, but an insured may rely on extrinsic facts in order to establish that there is a duty to defend⁵. In Fitzpatrick v. Am. Honda Motor Co., the complaint alleged that the property owner where an accident occurred was Cherrywood Property Owners Association (CPOA). CPOA was a landscaping company owned by Moramarco. Moramarco sought coverage under CPOA’s policy, but the carrier denied coverage because the complaint did not specifically allege Moramarco was an owner of CPOA, and therefore the carrier argued that the complaint did not trigger any coverage for Moramarco. Ultimately, when the issue was litigated, the court determined that “the insurer must provide a defense if it has knowledge of facts which potentially bring the claim within the policy’s indemnity coverage.”⁶ Thus, because there was no dispute that Moramarco was actually an owner of CPOA, the insurer could not deny a defense simply because the complaint did not mention the ownership of the company.
Because the Burlington court made no determinations regarding the duty to defend, Fitzpatrick was not discussed. However, and as seen in the discussion below, Fitzpatrick has been commonly discussed in recent cases where there is a question regarding whether Burlington impacted a carrier’s defense obligation.

BURLINGTON DID NOT CHANGE AN INSURER’S DEFENSE OBLIGATION

Under New York law, an insurer’s duty to defend against a claim is “exceedingly broad.”⁷ “An insurer’s duty to defend . . . is ordinarily ascertained by comparing the allegations of a complaint with the wording of the insurance contract.”⁸ Several courts have clearly determined that the Burlington decision did not change an insurer’s duty to defend.

One straightforward case interpreting the same language as the Burlington endorsement is Kingsway Realty, LLC v. Gemini Ins. Co.⁹ In that case, the court explained that the scope of the additional insured endorsement required the named insured to have proximately caused the accident. Thus, in order to trigger the insurer’s duty to defend the additional insured, there must be a reasonable possibility that the named insured proximately caused the accident. In Kingsway, the was an allegation in the underlying action that the injury had occurred as a result of the named insured’s failure to maintain the sidewalk, scaffolding, and metal plates at the premises.¹⁰ Thus, there was a reasonable possibility that the accident was caused by the named insured’s actions. The insurer in this case had argued that the complaint in the underlying action was insufficient to trigger coverage and that the underlying plaintiff would have had to allege a greater connection between the named insured and the area where the underlying plaintiff was injured, but the court rejected that argument.¹¹

In Allied World Assurance Co. (U.S.) Inc. v. Aspen Specialty Ins. Co.,¹² the court in the underlying bodily injury action had determined that the named insured did not proximately cause the accident. The named insured’s carrier argued that there was no obligation to defend any additional insureds for that reason. The court disagreed because it determined that based on the allegations in the underlying complaint, there was a reasonable possibility that the named insured would be deemed responsible for the accident and that “[t]o hold otherwise would result in the perverse outcome where insurers are not obligated to bear the cost of an insured’s successful defense and may withhold payment of defense costs until their insured is found liable after a failed defense.”¹³ Thus, and as discussed further below, while determinations of liability in the underlying action may vitiate the insurer’s obligation to indemnify an additional insured, the duty to defend must be determined based on the allegations in the complaint and whether there is a possibility the named insured will be deemed responsible.

Thus, arguably an insurer’s obligation to defend an additional insured is unchanged, and several recent cases have specifically made that point.¹⁴

NEGLIGENCE ALLEGATIONS AGAINST NAMED INSURED TRIGGER DEFENSE OBLIGATION, BUT THEY ARE NOT NECESSARY TO TRIGGER THE DUTY TO DEFEND

One recurring issue that arises when it comes to whether there is an obligation to defend an additional insured is the reasonableness of the possibility that the named insured proximately caused the accident. The question is how proximate the named insured’s connection to the accident must be in order to trigger a defense obligation.

Following Burlington, New York Courts have found that even broad allegations of a named insured’s negligence are sufficient to trigger a duty to defend. For example, in City of N.Y. v. Fleet Gen. Ins. Grp., Inc.,¹⁵ the court rejected the insurer’s position that pursuant to Burlington, the underlying complaint must allege that the additional insured is vicariously responsible for the named insured’s conduct. In that case, the court determined that the duty to defend the additional insured was triggered because the underlying complaint contained allegations that the named insured was negligent.¹⁶

However, there are other recent cases that have determined it was reasonably possible that an accident was caused by the named insured even where there were no allegations by the injured person against the named insured. For example, in Old Republic Gen. Ins. Corp. v. Consol. Edison Co. of N.Y.,¹⁷ two employees of the named insured filed a lawsuit against Con Edison alleging they were injured while performing work at a construction site when the elevator they were riding came to an abrupt stop.¹⁸ Con Edison sought coverage under the named insured’s policy and submitted deposition testimony from one of the underlying plaintiffs asserting that the named insured knew that the elevator had malfunctioned 10-12 times before the subject accident. Thus, even though there was no liability asserted against the Named Insured, the court determined that there was a duty to defend.¹⁹ In this case, facts extrinsic to the complaint appear critical to the court’s decision.
Similarly, in United States Specialty Ins. Co. v. Harleysville Worcester Ins. Co.,²⁰ the court determined that it was possible the accident resulted from the named insured’s actions where the first-party complaint alleged that the injured person was an employee of a contractor hired by the owner and that the injuries were caused by the owner and its “agents, servants, and/or employees.” Various other courts have also determined that the fact that the named insured was not sued by the injured party does not mean that the named insured’s insurer has no obligation to provide additional insureds with coverage.²¹
Notably, allegations by an underlying bodily injury plaintiff against a named insured is not always possible because the Workers Compensation Law § 11 bars an injured person from suing his or her employer directly.²²

However, where the named insured is not sued, the party seeking additional insured coverage must be able to show that the accident may have been caused by the named insured. For example, in Greater NY Mut. Ins. Co. v NY Mar. & Gen. Ins. Co.,²³ an owner hired a contractor to perform certain work at the owner’s premises. A pedestrian sued the owner alleging that he had been injured when he fell on the sidewalk outside of the premises. The contractor’s insurer denied the owner additional insured coverage for the underlying bodily injury lawsuit because there was no indication that the pedestrian’s accident had anything to do with the contractor’s work. The owner asserted that coverage was triggered because the underlying complaint had alleged that the contractor was contracted to construct scaffolding on the premises. The court found it significant, however, that there was no allegation that the trip and fall was caused by the scaffolding and also pointed out that the additional insured never submitted any evidence from the underlying action tying the fall to the scaffolding. Therefore, the court denied the owner’s motion for summary judgment seeking coverage for the underlying lawsuit.

Thus, although the bar to demonstrate that there is a reasonable possibility that an accident was caused by the named insured may be low, there must be more than just an amorphous connection between the accident and the named insured.

IMPACT OF CLAIMS BY NAMED INSURED’S EMPLOYEE

Another fact that repeatedly arises in additional insured cases is the significance of the fact that the injured party in the underlying action is an employee of the named insured. As mentioned above, an injured party is precluded from suing his or her own employer, so there will never be allegations by an injured party directly against his or her employer in the complaint. But relatedly, the fact that the injured person is an employee of the named insured also does not necessarily mean that the accident was caused by the named insured. There must be some factual basis to reasonably conclude there is a possibility the named insured proximately caused the injury to its employee. This is in contrast to additional insured endorsements that utilize an “arising out of” trigger where New York courts apply but for causation as the trigger. The Burlington decision did change the law by applying a proximate cause analysis to determine if an injury is “caused by” the named insured’s acts or omissions versus a but for test when an “arising out of” the named insured’s acts or omissions trigger is used in an additional insured endorsement.²⁴

However, at least two motion courts have determined that “when an employee of the named insured is injured while in the employ of the named insured, the additional insured is entitled to defense because there is a reasonable possibility that the bodily injury is proximately caused by the named insured’s acts or omissions.”²⁵ Both cases were decided with little analysis of facts that may suggest the employer was at fault in some way for the injuries to its employee.

While, as discussed above, several New York Courts have found that where the named insured is an employer of the injured party, then there is a duty to defend because there is a reasonable possibility that the bodily injury is proximately caused by the named insured’s acts or omissions, in non-construction injury claims a different result has occurred. Thus, just because there is an injury to an employee of the named insured, that does not necessarily mean there is a reasonable possibility that the injury was caused by the named insured. There are instances where an employee’s injury arguably had nothing to do with the instruction or control of the employer.

For example, in Hanover Ins. Co. v. Phila. Indem. Ins. Co.,²⁶ Philadelphia issued a policy to Protection Plus Security Corporation, and Manhattan School was an additional insured under that policy. The additional insured endorsement contained the “caused, in whole or in part” language. In the underlying action, an employee of Protection Plus alleged that he was injured while working as a security guard at Manhattan School when he slipped and fell on a recently mopped floor. The Court found that the named insured was not the proximate cause of the injury because the security company had nothing to do with how the employee was injured. Instead, Manhattan School was the sole proximate cause of the injury because its employees were responsible for cleaning the floors, and as a result, coverage was not available to Manhattan School under the policy issued to the security contractor/employer.₂₇

Similarly, in Pioneer Cent. Sch. Dist. v. Preferred Mut. Ins. Co.,²⁸ Kleanerz provided janitorial services to Pioneer. A Kleanerz employee filed the underlying action alleging that she had been injured in the parking lot of Pioneer Middle School when she slipped on snow or ice. Pioneer sought additional insured coverage under the policy issued to Kleanerz, which extended additional insured coverage to Pioneer for bodily injury “caused, in whole or in part, by” the “acts or omissions” of Kleanerz or those acting on its behalf.²⁹ The court found that the injuries were not proximately caused by the named insured, Kleanerz, because Kleanerz was a cleaning company and not responsible for snow or ice removal. The court rejected Pioneer’s contention that Kleanerz caused the accident by telling Ayers to exit a particular door where Ayers slipped on ice.

In Ohio Sec. Ins. Co. v. Travelers Indem. Co.,³⁰ an individual was injured when he tripped and fell on the job while working for an HVAC contractor.³¹ In the underlying suit, the injured person sued the property owners and the construction manager, which impleaded the HVAC contractors, one of which was the injured person’s employer. The issue in the declaratory judgment action was whether any of the parties were entitled to additional insured coverage under the policy issued to the injured person’s employer. Notably, the injured person claimed in his discovery responses that his accident was caused by a temporary floor covering, something that the named insured was not responsible for. The court concluded that “there is no genuine dispute as to whether the factual allegations in Mena’s complaint—or any other facts known to Travelers—raise a reasonable possibility that Travelers will be required to indemnify the first-party defendants in Mena’s suit.”³²

Again, it is reasonable that an employee may be injured but there is no reasonable possibility that the named insured was a proximate cause of those injuries. There are not many cases in this regard, but those discussed above demonstrate that there is no bright-line rule that the duty to defend an additional insured is always triggered where there is an injury to an employee of the named insured.

INTERPLAY BETWEEN EXTRINSIC FACTS AND THE DUTY TO DEFEND

Additionally, extrinsic facts cannot vitiate an insurer’s defense obligation. In Travelers Prop. Cas. Co. of Am. v. Harleysville Ins. Co. of NY,³³ the insurer argued that it had no duty to defend the additional insured because the named insured did not cause the accident. To make that argument, the insurer relied upon the “testimony by the injured party of what another party told him soon after his accident.”³⁴ The court explained that (1) the testimony did not constitute compelling evidence or adjudication of liability; and (2) pursuant to Fitzpatrick, that the testimony was extrinsic evidence that could not be used to support the insurer’s position vis a vis the duty to defend.

Zurich Am. Ins. Co. v. XL Ins. Am., Inc.³⁵ is also instructive in this regard. The court’s discussion in this case was replete with very specific facts about how an employee of the named insured was injured while working on a construction project. To support its position that there was no duty to defend an additional insured, the insurer relied on various arguments regarding how the accident occurred and how the named insured was supposedly not responsible. For example, the insurer argued that an employee of the additional insured had been negligent in not securing the falling micropile with a sling and that was what caused the accident.³⁶ The court explained that “[e]xtrinsic evidence cannot be used to defeat a duty to defend that arises from the words of a complaint.”³⁷

Moreover, courts tend to be very strict about the fact that allegations in the complaint need not be true to trigger coverage. For example, in Houston Cas. Co. v Hudson Excess Ins. Co.,³⁸ a carrier argued that it should not owe additional insured coverage under a policy issued to a subcontractor because the subcontractor could demonstrate that its work was performed no later than June 2016. Specifically, the carrier argued that an alleged trip and fall was unrelated to the subcontractor’s work on the project and that an allegations in the complaint that the subcontractor had performed work prior to the October 2018 fall was false.³⁹ The carrier submitted an affidavit from the subcontractor attesting to the fact that it never actually performed work where the plaintiff had fallen, but the court explained that “extrinsic evidence that goes directly to the merits of the claims in the underlying action cannot be used to defeat the duty to defend.”⁴⁰

Based on the broad standard of the duty to defend and the fact that there need only be a reasonable possibility that the named insured caused the accident, it makes sense that adjudication of liability is not necessary to trigger an insurer’s duty to defend.⁴¹

Moreover, the duty to defend continues even where the facts in the underlying action take the matter outside of coverage. The court in City of N.Y. v. Liberty Mut. Ins. Co.,⁴² relying on Fitzpatrick, determined that in cases where there is extrinsic evidence that may entitle an insurer to terminate a duty to defend, the insurer must present such evidence to a court and may not refuse to defend as an initial matter.⁴³

DUTY TO INDEMNIFY ISSUES

Because an insurer has an obligation to defend an additional insured based on the allegations in the complaint, and the duty to indemnify can only be established by a finding that the named insured proximately caused the accident, then courts routinely determine that the obligation to indemnify cannot be determined until the named insured is found to have proximately caused the accident.⁴⁴ Thus, even where a court determines as a matter of law that an insurer owes a duty to defend an additional insured, where the endorsement requires that the accident be caused by the named insured, courts will routinely stay the declaratory judgment action until liability is determined in the underlying action.

Of course, this is not always the case. For example, in Long Is. Rail Rd. Co. v NY Mar. & Gen. Ins. Co.,⁴⁵ the court determined that an owner was entitled to both defense and indemnity as an additional insured under a policy issued to elevator contractor where the underlying accident occurred within an elevator.

The requirement that the duty to indemnify the additional insured results whenever the injuries are “caused, in whole or in part, by” the named insured means that the insurer will have an obligation to indemnify the additional insured as long as the named insured is deemed 1% responsible. For example, in Starr Indem. & Liab. Co. v. Excelsior Ins. Co.,⁴⁶ following a jury trial, the named insured was deemed 35% at fault for a particular accident. The court explained that “where liability is not attributed to the underlying defendants’ sole negligence, and where the named insured is more than 0% liable for the underlying plaintiff’s injuries, additional insured coverage is triggered.⁴⁷

If the duty to indemnify cannot be determined until the named insured is deemed to have proximately caused the accident, then the next question is what exactly needs to occur to establish that proximate causation. This was the exact issue in Liberty Mut. Ins. Corp. v. N.Y. Marine & Gen. Ins. Co.⁴⁸ In this case, the insurer argued that it no longer had any obligation to defend the additional insureds because all of the claims against the named insured had been dismissed. Thus, the insurer’s position was that there was no longer any possibility that the named insured could be deemed responsible for the accident. The court disagreed and pointed out that the decision in the underlying action dismissing the claims against the named insured did not mention proximate causation and, in fact, the claims had been dismissed for reasons unrelated to causation – such as the ownership of the property.⁴⁹ The court also explained that the third-party claims for contractual indemnification against the named insured were being considered on appeal in the underlying action, but it noted that the language of the contractual indemnification clause required that the accident “arise out of” the named insured’s actions, which is a different standard than being “caused by” the named insured’s actions.⁵⁰ Thus, the court also pointed out that the underlying action may not resolve the critical causation question and that the issue may need to be resolved by the declaratory judgment action.⁵¹

This is an interesting decision because although, generally speaking, those litigating these types of dispute aver that the findings in the underlying action will inform the analysis vis a vis the additional insured issues for all of the reasons explained above. However, it is not always clear whether the underlying action will involve the specific types of questions or issues that are necessary to inform the coverage analysis.

CONCLUSION

Issues surrounding additional insured coverage are constantly being litigated. As explained above and as demonstrated by the cases discussed in this article, certain principles can be gleaned regarding the post-Burlington landscape, but those cases are by no means entirely consistent. Because there is such a wide breath of case law, practitioners are well-advised that, for whatever particular coverage question that might cross their desk on any particular day, there is likely a New York court that has decided the issue on similar facts.

*Paulina is an associate attorney at Kelly, Rode & Kelly LLP in Mineola, New York.

¹ Id. at 318.
² Id.
³ Id. at 324.
⁴ Id. at 325.
⁵ Fitzpatrick v. Am. Honda Motor Co., 78 N.Y.2d 61, 63, 571 N.Y.S.2d 672, 672, 575 N.E.2d 90, 90 (1991).
⁶ Id. at 66.
⁷ Colon v. Aetna Life & Cas. Ins. Co., 66 N.Y.2d 6, 8, 484 N.E.2d 1040, 494 N.Y.S.2d 688 (1985).
⁸ Int’l Bus. Machs. Corp. v. Liberty Mut. Ins. Co., 363 F.3d 137, 144 (2d Cir. 2004) (citations omitted).
⁹ No. 18-cv-1700 (AJN), 2019 U.S. Dist. LEXIS 37769 (S.D.N.Y. Mar. 8, 2019).
¹⁰ Id. at *10.
¹¹ Id. at *11-12.
¹² 2019 NY Slip Op 32749(U), *5 (Sup. Ct., N.Y. Co. 2019).
¹³ Id. at *7.
¹⁴ See also Travelers Prop. Cas. Co. of Am. v Harleysville Ins. Co. of NY, 67 Misc. 3d 1227[A], 2020 NY Slip Op 50658[U], *5 (Sup. Ct., N.Y. Co. 2020) (“In any case, Burlington did not alter the duty to defend.”).
¹⁵ No. 19-CV-6629 (RPK) (ST), 2021 U.S. Dist. LEXIS 90876, at *21-24 (E.D.N.Y. May 12, 2021).
¹⁶ See also Vargas v. City of NY, 158 A.D.3d 523, 525 (1st Dept. 2018) (explaining that the complaint alleged “that all defendants [including the named insured] were negligent and failed to provide a safe job site,” so it was “possible that plaintiff’s injury was caused by [the named insured]”); Kookmin Best Ins. Co. v. Foremost Ins. Co., 2019 U.S. Dist. LEXIS 35942, at *13 (S.D.N.Y. Mar. 5, 2019) (explaining that it was possible that the jury in the underlying action may determine that the named insured’s acts or omissions had not nothing to do with the accident but “that uncertain outcome is immaterial to the question whether Foremost is obligated to defend 660 Realty”).
¹⁷ 193 A.D.3d 595, 146 N.Y.S.3d 620 (1st Dept. 2021).
¹⁸ Id. at 596.
¹⁹ Id. at 597.
²⁰ 2021 U.S. Dist. LEXIS 167928, at *21 (S.D.N.Y. Sep. 3, 2021).
²¹ See Wdf Inc. v. Harleysville Ins. Co. of N.Y., 193 A.D.3d 667, 667-68, 146 N.Y.S.3d 128, 130 (1st Dept. 2021) (“Harleysville had a duty to defend WDF even though the underlying personal injury complaint contained no allegations that Vamco was negligent, because Harleysville had actual knowledge of facts establishing a reasonable possibility of coverage.”); 101 W. 78th, LLC v. NY Mar. & Gen. Ins. Co., 2020 NY Slip Op 32737[U], *22 (Sup. Ct., N.Y. Co. 2020) (“As an initial matter, the court finds no merit in NYM’s argument that, because the Ocean Grill complaint did not name nor refer to Sweet in its complaint, NYM is thereby absolved from its duty to provide a defense.”); Tishman Constr. Corp. of N.Y. v Scottsdale Ins. Co., 2018 NY Slip Op 30991[U], *6 (Sup. Ct., N.Y. Co. 2018) (“Although Ornamental was not a party to the underlying action, Scottsdale has failed to establish that there is no possible factual or legal basis on which it might be obligated to indemnify Tishman and Owners.”).
²² See, e.g., Charter Oak Fire Ins. Co. v. Zurich Am. Ins. Co., 462 F. Supp. 3d 317, 326 (S.D.N.Y. 2020) (noting that the underlying plaintiff could not have sued the named insured because the named insured was the employer); Axis Constr. Corp. v Travelers Indem. Co. of Am. & State Natl. Ins. Co., No. 2:20-cv-1125 (DRH) (ARL)), 2021 U.S. Dist. LEXIS 166083, at *13-14 (E.D.N.Y. Sep. 1, 2021) (“The practical reality here is New York law statutorily prohibits Filippone from naming his employer, AWI (Travelers’s named insured), as a negligent party liable for his injuries.”).
²³ 2020 NY Slip Op 33060[U], *3 (Sup Ct, N.Y. Co. 2020).
²⁴ Compare Burlington, 29 N.Y.3d at 323-325 with Regal Constr. Corp. v. Natl. Union Fire Ins. Co. of Pittsburgh, PA, 15 N.Y.3d 34, 38 (2010).
²⁵ Travelers Prop. Cas. Co. of Am. v. Harleysville Ins. Co. of NY, 67 Misc. 3d 1227(A), 2020 NY Slip Op 50658(U), *5-6 (Sup. Ct., N.Y. Co. 2020); Indian Harbor Ins. Co. v. Alma Tower, LLC, 2017 N.Y. Misc. LEXIS 13444, at *4 (Sup Ct, N.Y. Co. Aug. 9, 2017) (same).
²⁶ 159 A.D.3d 587, 587, 73 N.Y.S.3d 549, 550 (1st Dept. 2018).
²⁷ Id. at 588.
²⁸ 165 A.D.3d 1646, 86 N.Y.S.3d 364 (4th Dept. 2018).
²⁹ Id. at 1646.
³⁰ No. 19-cv-1355 (AJN), 2021 U.S. Dist. LEXIS 38292 (S.D.N.Y. Mar. 1, 2021).
³¹ Id. at *2.
³² Id. at *16.
³³ 67 Misc. 3d 1227(A), 2020 NY Slip Op 50658(U), *5 (Sup. Ct., N.Y. Co. 2020).
³⁴ Id. at *12.
³⁵ No. 20-cv-4614 (LJL), 2021 U.S. Dist. LEXIS 126838, at *42 (S.D.N.Y. July 7, 2021).
³⁶ Id. at *41-43.
³⁷ See also United States Underwriters Ins. Co. v. Image By J & K, LLC, 335 F. Supp. 3d 321, 332 (E.D.N.Y. 2018) (rejecting the insurer’s argument regarding the testimony about who was responsible for an accident because it was outside of the complaint).
³⁸ No. 21-cv-3182 (JSR), 2021 U.S. Dist. LEXIS 190640, at *10 (S.D.N.Y. Oct. 4, 2021).
³⁹ Id. at *5.
⁴⁰ Id. at *10-11.
⁴¹ See Breeze Nat’l, Inc. v. Century Sur. Co., 170 A.D.3d 591, 592, 96 N.Y.S.3d 56, 57 (1st Dept. 2019) (“Century’s argument that ACT has never been adjudicated as negligent, and had no control over the means and methods of Wilk’s work is misplaced . . . .”); Noble Constr. Grp. LLC v. Farm Family Cas. Ins. Co., 2021 NY Slip Op 30412(U), *5 (Sup. Ct., Kings Co. 2021) (denying insurer’s pre-answer motion to dismiss based on the allegation in the underlying complaint that the underlying plaintiff had been under the direction and control of the named insured at the time of the accident).
⁴² 2017 U.S. Dist. LEXIS 164134 (S.D.N.Y. Sep. 28, 2017).
⁴³ Id. at *39-40. See also id. at *42 (“[A] subsequent decree terminating the duty on the basis of extrinsic evidence does not retroactively eliminate the duty that initially arose.”).
⁴⁴ See Vargas, 158 A.D.3d at 525.
⁴⁵ ___A.D.3d___, 2021 NY Slip Op 05698, *6-7 (2d Dept. 2021).
⁴⁶ 2021 U.S. Dist. LEXIS 18706, *12 (S.D.N.Y. Feb. 1, 2021).
⁴⁷ Id. at *24-25.
⁴⁸ 505 F. Supp. 3d 260 (S.D.N.Y. 2020).
⁴⁹ Id. at 273-274.
⁵⁰ Id. at 274.
⁵¹ Id. at 274-275.