Preview
FILED: NEW YORK COUNTY CLERK 06/27/2022 12:53 PM INDEX NO. 656604/2022
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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HUDSON EXCESS INSURANCE COMPANY,
Plaintiff, Index No.: 656604/2022
-against- ANSWER WITH
COUNTERCLAIM
CERTAIN UNDERWRITERS AT LLOYD’S
LONDON subscribing to Policy No. LCC-000058
Defendant.
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Defendant CERTAIN UNDERWRITERS AT LLOYD'S LONDON subscribing to Policy
No. LCC-000058 (“UNDERWRITERS”), by its attorneys, MILBER MAKRIS PLOUSADIS &
SEIDEN, LLP, as and for its Answer to the Complaint, alleges the following upon information
and belief:
THE PARTIES
1. Denies having knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraph “1” of the Complaint.
2. Admits the truth of the allegations contained in paragraph “2” of the Complaint.
3. Denies each and every allegation contained in paragraph “3” of the Complaint
except admits that UNDERWRITERS was and is authorized to issue policies of insurance in the
State of New York on a surplus lines basis.
THE POLICIES
4. Denies having knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraphs “4” and “5” of the Complaint.
5. Denies each and every allegation contained in paragraph “6” of the Complaint
except admits that UNDERWRITERS issued a Commercial General Liability Policy to 485
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Seventh Avenue Associates, LLC (“485 Seventh”) bearing Policy No. LCC-000058 for the Policy
Period August 31, 2015 to June 30, 2017 with Limits of Insurance of $2,000,000 Each
Occurrence/$2,000,000 General Aggregate (the “Underwriters Policy”) and that Magnetic
Builders Group, LLC (“Magnetic”) was added as an Additional Named Insured by Endorsement
No. 4 which was effective on August 31, 2015.
THE MENA CLAIM
6. Admits the truth of the allegations contained in paragraphs “7”, “8”, and “9” of the
Complaint.
7. Denies having knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraph “10” of the Complaint.
8. Denies each and every allegation contained in paragraph “11” of the Complaint and
refers to the allegations in the Mena Action for their true and complete terms.
9. Denies having knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraphs “12”, “13”, and “14” of the Complaint.
THE INSURANCE DISPUTE
10. Denies each and every allegation contained in paragraph “15” of the Complaint and
refers to Underwriters Policy for its true and complete terms and respectfully refers all questions
of law to this Honorable Court for its ultimate determination.
11. Admits the truth of the allegations contained in paragraph “16” of the Complaint.
12. Denies having knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraphs “17” and “18” of the Complaint as it relates to Magnetic
except admits that, upon information and belief, First Mercury has assumed the defense of 485
Seventh and Magnetic in the Mena Action.
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13. Denies each and every allegation contained in paragraphs “19”, “20”, “21” and
“22” of the Complaint except admits that the Underwriters Policy is excess over the First Mercury
Policy and the Hudson Policy for the Mena Action and refers to the Underwriters Policy for its
true and complete terms.
14. Denies each and every allegation contained in paragraph “23” of the Complaint
except admits that the Underwriters Policy does not apply to 485 Seventh and Magnetic in the
Mena Action unless and until there is exhaustion of the limits of the First Mercury Policy and the
limits of the Hudson Policy and refers to the Underwriters Policy for its true and complete terms.
15. Denies each and every allegation contained in paragraphs “24”, “25”, and “26” of
the Complaint.
AS AND TO THE FIRST CAUSE OF ACTION
AGAINST UNDERWRITERS
16. As and for a response to the allegations contained in paragraph “27” of the
Complaint, Defendant UNDERWRITERS repeat, reiterate and reallege each and every response
to the allegations contained in paragraphs “1” through “26” of the Complaint with the same force
and effect as if fully set forth herein.
17. Denies each and every allegation contained in paragraphs “28”, “29”, “30”, “31”,
“32” and “33” of the Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
18. Any claims may be barred in whole or in part by reason of the “other insurance”
provisions in the Underwriters Policy.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
19. The Underwriters Policy does not afford coverage for an insured or alleged
insured’s claims if such insured or alleged insured has failed to exhaust underlying coverage.
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AS AND FOR A THIRD AFFIRMATIVE DEFENSE
20. To the extent any claims do not arise out of a legal obligation of an insured, any
claims fail to state a claim for relief under the Underwriters Policy.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
21. Any and all claims are barred to the extent the injuries alleged in the Mena Action
was not caused by a named insured under the Underwriters Policy.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
22. Coverage under the Underwriters Policy may be barred or dismissed by the
doctrines of waiver, lack of consideration, estoppel, laches, release, payment and/or unclean hands.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
23. Plaintiff may not maintain each and every cause of action against the undersigned
Defendant since it has failed to join parties necessary to this action.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
24. The Underwriters Policy is excess over and above all other policies of insurance
affording coverage for the claims set forth in the Mena Action, including the First Mercury Policy
and the Hudson Policy.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
25. In the event it is determined that UNDERWRITERS has any duties, obligations,
and/or liabilities to any insured, UNDERWRITERS alleges that it is secondary, in whole or in part,
to the duties, obligations, and/or liabilities of the insurers for A&GV Stucco Construction Corp.,
or persons or entities not currently parties to this action.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
26. The Complaint fails to state a claim upon which relief may be granted.
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AS AND FOR A TENTH AFFIRMATIVE DEFENSE
27. UNDERWRITERS may have additional defenses that cannot be articulated
because they do not have all the documents or information bearing on insurance coverage issues.
Because UNDERWRITERS cannot now assert all issues and defenses, UNDERWRITERS
reserves the right to reevaluate, reassess and replead affirmative defenses to the extent additional
issues arise.
AS AND FOR A COUNTERCLAIM AGAINST HUDSON
THE PARTIES
28. At all times hereinafter mentioned, Plaintiffs, UNDERWRITERS, were and are a
voluntary association of insurance underwriters, each with liability for its own proportionate share
of the risk underwritten by them, and not jointly or for one another, organized and existing under
the law of the United Kingdom with their principal place of business located in London, England.
29. At all times hereinafter mentioned, UNDERWRITERS was and is authorized to
issue policies of insurance in the State of New York on a surplus lines basis.
30. As set forth in paragraph “1” of the Complaint, the Plaintiff, HUDSON EXCESS
INSURANCE COMPANY (“HUDSON”), is an insurance company licensed and/or authorized to
do business in the State of New York.
JURISDICTION AND VENUE
31. This is a counterclaim for a declaratory judgment for the purpose of determining a
question of actual controversy between the parties as described more completely herein.
32. Jurisdiction is proper pursuant to CPLR §§ 301, 302 and 3001 and N.Y. Const. Art.
6 §7(a).
33. Venue is properly laid in this county pursuant to CPLR §§ 503(a), 503(c) and 509.
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THE SUBCONTRACT
34. On or about September 25, 2015, Magnetic and A&GV entered into a Subcontract
Agreement (the “Subcontract”) for construction work to be performed at 485 Seventh Avenue,
New York, NY (“Project”).
35. The Subcontract required that A&GV to procure insurance with minimum
combined limits of $6 Million Each Occurrence/$7 Million General Aggregate naming 485
Seventh and Magnetic as additional insureds on a primary and non-contributory basis.
36. The Subcontract was in full force and effect on June 7, 2016.
THE MENA ACTION
37. Edwin Mena commenced a personal injury action against 485 Seventh Avenue
Associates, LLC and Magnetic Builders Group in the Supreme Court, Bronx County bearing Index
No. 20345/2017E (the “Mena Action”).
38. The Complaint in the Mena Action alleges that 485 Seventh and/or Magnetic hired
A&GV to provide work, labor and services at the Premises located at 485 Seventh Avenue, New
York, New York.
39. The Complaint in the Mena Action alleges that on June 7, 2016, Edwin Mena
injured when a portion of the building and construction equipment collapsed.
40. The Complaint in the Mena Action asserts claims for violations of Labor Law
§§240, 241[6] and 200 and has also asserted a claim for common-law negligence.
THE POLICIES
41. As set forth in paragraph “4” of the Complaint, non-party First Mercury Insurance
Company (“First Mercury”) issued Commercial General Liability Policy No. NY-CGL-
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0000057791-01 to A&GV Stucco Construction Corp. (“A&GV”) for the period September 18,
2015 to September 18, 2016 with limits of $1 million per occurrence (the “First Mercury Policy”).
42. The First Mercury Policy was in full force and effect on June 7, 2016.
43. On or prior to June 7, 2016, the First Mercury Policy specifically named 485
Seventh and Magnetic as additional insureds.
44. The Mena Action falls within the coverage afforded by the First Mercury Policy.
45. As set forth in paragraph “5” of the Complaint, HUDSON issued Commercial
Excess Liability Policy No. HXMX-200348 to A&GV for the period September 18, 2015 to
September 18, 2016 with limits of $5 million per occurrence excess of the $1 million First Mercury
Policy (the "Hudson Policy").
46. The Hudson Policy was in full force and effect on June 7, 2016.
47. The Hudson Policy follows the form of the First Mercury Policy.
48. On or prior to June 7, 2016, 485 Seventh and Magnetic qualified as additional
insureds under the Hudson Policy.
49. The Mena Action falls within the coverage afforded by the Hudson Policy.
50. UNDERWRITERS issued a Commercial General Liability Policy to 485 Seventh
Avenue Associates, LLC (“485 Seventh”) bearing Policy No. LCC-000058 for the Policy Period
August 31, 2015 to June 30, 2017 with Limits of Insurance of $2,000,000 Each
Occurrence/$2,000,000 General Aggregate (the “Underwriters Policy”) and that Magnetic
Builders Group, LLC (“Magnetic”) was added as an Additional Named Insured by Endorsement
No. 4 which was effective on August 31, 2015.
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AS AND FOR A FIRST CAUSE OF ACTION
51. UNDERWRITERS repeat and reiterate each and every allegation contained in
paragraphs “29” through “51” of this Answer with Counterclaim with the same force and effect
as though more fully set forth herein.
52. The “Other Insurance” provisions in the Underwriters Policy provide that the
Underwriters Policy is excess over any other insurance available to an insured.
53. Pursuant to the terms, provisions, and endorsements of the First Mercury Policy,
the coverage afforded to 485 Seventh and Magnetic under the Underwriters Policy is excess over
and above the additional insured coverage afforded to 485 Seventh and Magnetic under the First
Mercury Policy in the Mena Action.
54. Pursuant to the terms, provisions, and endorsements of the Hudson Policy, the
coverage afforded to 485 Seventh and Magnetic under the Underwriters Policy is excess over and
above the additional insured coverage afforded to 485 Seventh and Magnetic under the Hudson
Policy in the Mena Action.
55. HUDSON wrongfully contends that the Hudson Policy is excess over and above
the Underwriters Policy.
56. As a result, a justiciable controversy exists between UNDERWRITERS and
HUDSON concerning the rights of each other under the terms and conditions of the Hudson Policy.
57. UNDERWRITERS have no adequate remedy at law.
58. By reason of the foregoing, UNDERWRITERS are entitled to a declaratory
judgment pursuant to CPLR §3001, declaring that the Underwriters Policy is excess over and
above the coverage afforded to 485 Seventh and Magnetic under the Hudson Policy for the claims
asserted in the Mena Action.
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WHEREFORE, UNDERWRITERS demand judgment:
(A) Dismissing the Complaint in its entirety;
(B) Adjudging and declaring that the Underwriters Policy is excess over and
above the coverage afforded to 485 Seventh and Magnetic under the Hudson
Policy for the claims asserted in the Mena Action;
(C) Awarding the costs and disbursements of this action; and
(D) Awarding such other and further relief as this Court may deem just and
proper.
Dated: Woodbury, New York
June 27, 2022
MILBER MAKRIS PLOUSADIS
& SEIDEN, LLP
Attorneys for Defendant
1000 Woodbury Road, Suite 402
Woodbury, New York 11797
(516) 870-1123
File No.: 878-21900
TO: Ignatius John Melito, Esq.
Michael F. Panayotou, Esq.
MELITO & ADOLFSEN P.C.
Attorneys for Plaintiff
233 Broadway, Suite 2070
New York, New York 10279
(212) 238-8900
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Preview
FILED: NEW YORK COUNTY CLERK 06/27/2022 12:53 PM INDEX NO. 656604/2022 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------X HUDSON EXCESS INSURANCE COMPANY, Plaintiff, Index No.: 656604/2022 -against- ANSWER WITH COUNTERCLAIM CERTAIN UNDERWRITERS AT LLOYD’S LONDON subscribing to Policy No. LCC-000058 Defendant. ---------------------------------------------------------------------X Defendant CERTAIN UNDERWRITERS AT LLOYD'S LONDON subscribing to Policy No. LCC-000058 (“UNDERWRITERS”), by its attorneys, MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, as and for its Answer to the Complaint, alleges the following upon information and belief: THE PARTIES 1. Denies having knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph “1” of the Complaint. 2. Admits the truth of the allegations contained in paragraph “2” of the Complaint. 3. Denies each and every allegation contained in paragraph “3” of the Complaint except admits that UNDERWRITERS was and is authorized to issue policies of insurance in the State of New York on a surplus lines basis. THE POLICIES 4. Denies having knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs “4” and “5” of the Complaint. 5. Denies each and every allegation contained in paragraph “6” of the Complaint except admits that UNDERWRITERS issued a Commercial General Liability Policy to 485 1 of 9 FILED: NEW YORK COUNTY CLERK 06/27/2022 12:53 PM INDEX NO. 656604/2022 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/27/2022 Seventh Avenue Associates, LLC (“485 Seventh”) bearing Policy No. LCC-000058 for the Policy Period August 31, 2015 to June 30, 2017 with Limits of Insurance of $2,000,000 Each Occurrence/$2,000,000 General Aggregate (the “Underwriters Policy”) and that Magnetic Builders Group, LLC (“Magnetic”) was added as an Additional Named Insured by Endorsement No. 4 which was effective on August 31, 2015. THE MENA CLAIM 6. Admits the truth of the allegations contained in paragraphs “7”, “8”, and “9” of the Complaint. 7. Denies having knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph “10” of the Complaint. 8. Denies each and every allegation contained in paragraph “11” of the Complaint and refers to the allegations in the Mena Action for their true and complete terms. 9. Denies having knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs “12”, “13”, and “14” of the Complaint. THE INSURANCE DISPUTE 10. Denies each and every allegation contained in paragraph “15” of the Complaint and refers to Underwriters Policy for its true and complete terms and respectfully refers all questions of law to this Honorable Court for its ultimate determination. 11. Admits the truth of the allegations contained in paragraph “16” of the Complaint. 12. Denies having knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs “17” and “18” of the Complaint as it relates to Magnetic except admits that, upon information and belief, First Mercury has assumed the defense of 485 Seventh and Magnetic in the Mena Action. 2 2 of 9 FILED: NEW YORK COUNTY CLERK 06/27/2022 12:53 PM INDEX NO. 656604/2022 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/27/2022 13. Denies each and every allegation contained in paragraphs “19”, “20”, “21” and “22” of the Complaint except admits that the Underwriters Policy is excess over the First Mercury Policy and the Hudson Policy for the Mena Action and refers to the Underwriters Policy for its true and complete terms. 14. Denies each and every allegation contained in paragraph “23” of the Complaint except admits that the Underwriters Policy does not apply to 485 Seventh and Magnetic in the Mena Action unless and until there is exhaustion of the limits of the First Mercury Policy and the limits of the Hudson Policy and refers to the Underwriters Policy for its true and complete terms. 15. Denies each and every allegation contained in paragraphs “24”, “25”, and “26” of the Complaint. AS AND TO THE FIRST CAUSE OF ACTION AGAINST UNDERWRITERS 16. As and for a response to the allegations contained in paragraph “27” of the Complaint, Defendant UNDERWRITERS repeat, reiterate and reallege each and every response to the allegations contained in paragraphs “1” through “26” of the Complaint with the same force and effect as if fully set forth herein. 17. Denies each and every allegation contained in paragraphs “28”, “29”, “30”, “31”, “32” and “33” of the Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 18. Any claims may be barred in whole or in part by reason of the “other insurance” provisions in the Underwriters Policy. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 19. The Underwriters Policy does not afford coverage for an insured or alleged insured’s claims if such insured or alleged insured has failed to exhaust underlying coverage. 3 3 of 9 FILED: NEW YORK COUNTY CLERK 06/27/2022 12:53 PM INDEX NO. 656604/2022 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/27/2022 AS AND FOR A THIRD AFFIRMATIVE DEFENSE 20. To the extent any claims do not arise out of a legal obligation of an insured, any claims fail to state a claim for relief under the Underwriters Policy. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 21. Any and all claims are barred to the extent the injuries alleged in the Mena Action was not caused by a named insured under the Underwriters Policy. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 22. Coverage under the Underwriters Policy may be barred or dismissed by the doctrines of waiver, lack of consideration, estoppel, laches, release, payment and/or unclean hands. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 23. Plaintiff may not maintain each and every cause of action against the undersigned Defendant since it has failed to join parties necessary to this action. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 24. The Underwriters Policy is excess over and above all other policies of insurance affording coverage for the claims set forth in the Mena Action, including the First Mercury Policy and the Hudson Policy. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 25. In the event it is determined that UNDERWRITERS has any duties, obligations, and/or liabilities to any insured, UNDERWRITERS alleges that it is secondary, in whole or in part, to the duties, obligations, and/or liabilities of the insurers for A&GV Stucco Construction Corp., or persons or entities not currently parties to this action. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 26. The Complaint fails to state a claim upon which relief may be granted. 4 4 of 9 FILED: NEW YORK COUNTY CLERK 06/27/2022 12:53 PM INDEX NO. 656604/2022 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/27/2022 AS AND FOR A TENTH AFFIRMATIVE DEFENSE 27. UNDERWRITERS may have additional defenses that cannot be articulated because they do not have all the documents or information bearing on insurance coverage issues. Because UNDERWRITERS cannot now assert all issues and defenses, UNDERWRITERS reserves the right to reevaluate, reassess and replead affirmative defenses to the extent additional issues arise. AS AND FOR A COUNTERCLAIM AGAINST HUDSON THE PARTIES 28. At all times hereinafter mentioned, Plaintiffs, UNDERWRITERS, were and are a voluntary association of insurance underwriters, each with liability for its own proportionate share of the risk underwritten by them, and not jointly or for one another, organized and existing under the law of the United Kingdom with their principal place of business located in London, England. 29. At all times hereinafter mentioned, UNDERWRITERS was and is authorized to issue policies of insurance in the State of New York on a surplus lines basis. 30. As set forth in paragraph “1” of the Complaint, the Plaintiff, HUDSON EXCESS INSURANCE COMPANY (“HUDSON”), is an insurance company licensed and/or authorized to do business in the State of New York. JURISDICTION AND VENUE 31. This is a counterclaim for a declaratory judgment for the purpose of determining a question of actual controversy between the parties as described more completely herein. 32. Jurisdiction is proper pursuant to CPLR §§ 301, 302 and 3001 and N.Y. Const. Art. 6 §7(a). 33. Venue is properly laid in this county pursuant to CPLR §§ 503(a), 503(c) and 509. 5 5 of 9 FILED: NEW YORK COUNTY CLERK 06/27/2022 12:53 PM INDEX NO. 656604/2022 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/27/2022 THE SUBCONTRACT 34. On or about September 25, 2015, Magnetic and A&GV entered into a Subcontract Agreement (the “Subcontract”) for construction work to be performed at 485 Seventh Avenue, New York, NY (“Project”). 35. The Subcontract required that A&GV to procure insurance with minimum combined limits of $6 Million Each Occurrence/$7 Million General Aggregate naming 485 Seventh and Magnetic as additional insureds on a primary and non-contributory basis. 36. The Subcontract was in full force and effect on June 7, 2016. THE MENA ACTION 37. Edwin Mena commenced a personal injury action against 485 Seventh Avenue Associates, LLC and Magnetic Builders Group in the Supreme Court, Bronx County bearing Index No. 20345/2017E (the “Mena Action”). 38. The Complaint in the Mena Action alleges that 485 Seventh and/or Magnetic hired A&GV to provide work, labor and services at the Premises located at 485 Seventh Avenue, New York, New York. 39. The Complaint in the Mena Action alleges that on June 7, 2016, Edwin Mena injured when a portion of the building and construction equipment collapsed. 40. The Complaint in the Mena Action asserts claims for violations of Labor Law §§240, 241[6] and 200 and has also asserted a claim for common-law negligence. THE POLICIES 41. As set forth in paragraph “4” of the Complaint, non-party First Mercury Insurance Company (“First Mercury”) issued Commercial General Liability Policy No. NY-CGL- 6 6 of 9 FILED: NEW YORK COUNTY CLERK 06/27/2022 12:53 PM INDEX NO. 656604/2022 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/27/2022 0000057791-01 to A&GV Stucco Construction Corp. (“A&GV”) for the period September 18, 2015 to September 18, 2016 with limits of $1 million per occurrence (the “First Mercury Policy”). 42. The First Mercury Policy was in full force and effect on June 7, 2016. 43. On or prior to June 7, 2016, the First Mercury Policy specifically named 485 Seventh and Magnetic as additional insureds. 44. The Mena Action falls within the coverage afforded by the First Mercury Policy. 45. As set forth in paragraph “5” of the Complaint, HUDSON issued Commercial Excess Liability Policy No. HXMX-200348 to A&GV for the period September 18, 2015 to September 18, 2016 with limits of $5 million per occurrence excess of the $1 million First Mercury Policy (the "Hudson Policy"). 46. The Hudson Policy was in full force and effect on June 7, 2016. 47. The Hudson Policy follows the form of the First Mercury Policy. 48. On or prior to June 7, 2016, 485 Seventh and Magnetic qualified as additional insureds under the Hudson Policy. 49. The Mena Action falls within the coverage afforded by the Hudson Policy. 50. UNDERWRITERS issued a Commercial General Liability Policy to 485 Seventh Avenue Associates, LLC (“485 Seventh”) bearing Policy No. LCC-000058 for the Policy Period August 31, 2015 to June 30, 2017 with Limits of Insurance of $2,000,000 Each Occurrence/$2,000,000 General Aggregate (the “Underwriters Policy”) and that Magnetic Builders Group, LLC (“Magnetic”) was added as an Additional Named Insured by Endorsement No. 4 which was effective on August 31, 2015. 7 7 of 9 FILED: NEW YORK COUNTY CLERK 06/27/2022 12:53 PM INDEX NO. 656604/2022 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/27/2022 AS AND FOR A FIRST CAUSE OF ACTION 51. UNDERWRITERS repeat and reiterate each and every allegation contained in paragraphs “29” through “51” of this Answer with Counterclaim with the same force and effect as though more fully set forth herein. 52. The “Other Insurance” provisions in the Underwriters Policy provide that the Underwriters Policy is excess over any other insurance available to an insured. 53. Pursuant to the terms, provisions, and endorsements of the First Mercury Policy, the coverage afforded to 485 Seventh and Magnetic under the Underwriters Policy is excess over and above the additional insured coverage afforded to 485 Seventh and Magnetic under the First Mercury Policy in the Mena Action. 54. Pursuant to the terms, provisions, and endorsements of the Hudson Policy, the coverage afforded to 485 Seventh and Magnetic under the Underwriters Policy is excess over and above the additional insured coverage afforded to 485 Seventh and Magnetic under the Hudson Policy in the Mena Action. 55. HUDSON wrongfully contends that the Hudson Policy is excess over and above the Underwriters Policy. 56. As a result, a justiciable controversy exists between UNDERWRITERS and HUDSON concerning the rights of each other under the terms and conditions of the Hudson Policy. 57. UNDERWRITERS have no adequate remedy at law. 58. By reason of the foregoing, UNDERWRITERS are entitled to a declaratory judgment pursuant to CPLR §3001, declaring that the Underwriters Policy is excess over and above the coverage afforded to 485 Seventh and Magnetic under the Hudson Policy for the claims asserted in the Mena Action. 8 8 of 9 FILED: NEW YORK COUNTY CLERK 06/27/2022 12:53 PM INDEX NO. 656604/2022 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/27/2022 WHEREFORE, UNDERWRITERS demand judgment: (A) Dismissing the Complaint in its entirety; (B) Adjudging and declaring that the Underwriters Policy is excess over and above the coverage afforded to 485 Seventh and Magnetic under the Hudson Policy for the claims asserted in the Mena Action; (C) Awarding the costs and disbursements of this action; and (D) Awarding such other and further relief as this Court may deem just and proper. Dated: Woodbury, New York June 27, 2022 MILBER MAKRIS PLOUSADIS & SEIDEN, LLP Attorneys for Defendant 1000 Woodbury Road, Suite 402 Woodbury, New York 11797 (516) 870-1123 File No.: 878-21900 TO: Ignatius John Melito, Esq. Michael F. Panayotou, Esq. MELITO & ADOLFSEN P.C. Attorneys for Plaintiff 233 Broadway, Suite 2070 New York, New York 10279 (212) 238-8900 9 9 of 9