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FILED: NEW YORK COUNTY CLERK 10/27/2022 10:29 AM INDEX NO. 656604/2022
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
HUDSON EXCESS INSURANCE COMPANY, Index No.: 656604/2022
Plaintiff,
-against- STATEMENT OF
MATERIAL FACTS
CERTAIN UNDERWRITERS AT LLOYD’S LONDON
subscribing to Policy No. LCC-000058,
Defendant.
Plaintiff Hudson Excess Insurance Company (“Hudson” or “Plaintiff”) by and through its
attorneys Melito & Adolfsen P.C., hereby respectfully submits to the Court the following
Statement of Material Facts to which there is no genuine issue to be tried in support of its motion
for summary judgment:
BACKGROUND
1. By way of background, this insurance action relates to a certain underlying action
commenced in Bronx Supreme Court by Edwin Mena styled Edwin Mena v. 485 Seventh Avenue
Associates LLC, et al., Index No. 20345/2017E, seeking to recover damages from non-parties 485
Seventh Avenue Associates LLC (“485 Seventh”), which is the building owner, and Magnetic
Builders Group (“Magnetic”), which is the construction manager. Underwriters insures both 485
Seventh and Magnetic on a primary basis.
2. 485 Seventh was the Project owner, and Magnetic acted as the construction
manager on the Project.
3. AG&V was hired by Magnetic to perform demolition work on the Project.
4. Claimant Mena was allegedly injured when a piece of concrete ceiling fell on him
while he was demolishing a wall at the Project (the “Mena Accident”).
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5. Mena filed suit in New York Supreme Court, Bronx County captioned Edwin Mena
v. 485 Seventh Avenue Associates LLC, et al. (Index No. 20345/2017E) seeking to recover
damages from 485 Seventh and Magnetic for his injuries allegedly sustained in the Mena Accident
(the “Mena Action”).
6. The Court in the Mena Action granted plaintiff summary judgment against 485
Seventh and Magnetic finding them liable as a matter of law under New York Labor Law §2410(1).
7. The summary judgment ruling against 485 Seventh and Magnetic in the Mena
Action has been affirmed by the Appellate Division, First Department.
8. The Mena Action will proceed to a trial on damages against 485 Seventh and
Magnetic.
THE POLICIES
9. Non-party First Mercury Insurance Company (“First Mercury”) issued Commercial
General Liability Policy No. NY-CGL-0000057791-01 to A&GV Stucco Construction Corp.
(“A&GV”) for the period 9/18/15 to 9/18/16 with limits of $1 million per occurrence (the “First
Mercury Policy”).
10. Hudson issued Commercial Excess Liability Policy No. HXMX200348 to A&GV
for the period 9/18/15 to 9/18/16 with limits of $5 million per occurrence excess of the $1 million
First Mercury Policy (the “Hudson Excess Policy”). See Exhibit A, which is a certified copy of
the Hudson Excess Policy. The Hudson Excess Policy is discussed infra.
11. Underwriters issued Commercial General Liability Policy No. LCC-000058 to 485
Seventh Ave. Associates LLC (“485 Seventh”) and Magnetic Builders Group (“Magnetic”) for the
period 8/31/15 to 6/30/17 with limits of $2 million per occurrence (the “Underwriters Policy”).
See Exhibit B, which is the Underwriters Policy. Underwriters has admitted that the Underwriters
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Policy is a true and correct copy of the Underwriters Policy by declining to object to Hudson’s
Notice to Admit, Docket #6.
12. The Underwriters Policy contains the following standard “other insurance”
language in form CG00011207:
4. Other Insurance
If other valid and collectible insurance is available to the
insured for a loss we cover under Coverages A or B of this
Coverage Part, our obligations are limited as follows:
a. Primary Insurance
This insurance is primary except when Paragraph b.
below applies. If this insurance is primary, our
obligations are not affected unless any of the other
insurance is also primary. Then, we will share with
all that other insurance by the method described in
Paragraph c. below.
b. Excess Insurance
(1) This insurance is excess over:
(a) Any of the other insurance, whether
primary, excess, contingent or on any
other basis:
(i) That is Fire, Extended Coverage,
Builder’s Risk, Installation Risk or
similar coverage for “your work”;
(ii) That is Fire insurance for premises
Rented to you or temporarily occu-
pied by you with permission of the
owner;
(iii) That is insurance purchased by you
to cover your liability as a tenant for
“property damage” to premises rent-
ed to you or temporarily occupied by
you with permission of the owner; or
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(iv) If the loss arises out of the mainte-
nance or use of aircraft, “autos” or
watercraft to the extent not subject to
Exclusion g. of Section I – Coverage
A – Bodily Injury and Property Dam-
age Liability.
(b) Any other primary insurance
available to you covering liability for
damages arising out of the premises
or operations, or the products and
completed operations, for which you
have been added as an additional
insured.
See Exhibit B, page 48 [emphasis added].
13. The Hudson Excess Policy contains the following language in coverage form
CX00010413:
8. Other Insurance
a. This insurance is excess over, and shall not
contribute with any of the other insurance,
whether primary, excess, contingent or on any
other basis. This condition will not apply to
insurance specifically written as excess over
this Coverage Part.
* * *
b. When this insurance is excess over other
insurance, we will pay only our share of the
“ultimate net loss” that exceeds the sum of:
(1) The total amount that all such other
Insurance would pay for the loss in the
absence of the insurance provided under
this Coverage Part; and
(2) The total of all deductible and self-insured
amounts under all that other insurance.
See Exhibit A, page 11.
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14. The Hudson Excess Policy also contains an endorsement titled “Excess Liability
Primary and Non-Contributory Coverage,” Form HXME2260715, which reads in relevant part as
follows:
Section III – Conditions, 8. Other insurance is amended at the following
added:
It is agreed that such insurance as is afforded by this policy for the benefit
of an Additional Insured shall be primary to, and on a non-contributory basis
with, any other excess insurance available to such Additional Insured,
provided that you are specifically required by a written contract to provide
such insurance and the contract is executed by you before any “event.”
Coverage shall be limited to the extent required by the written contract.
See Exhibit A, page 41 [emphasis added].
THE TENDER BY UNDERWRITERS
AND ACCEPTANCE BY FIRST MERCURY
15. 485 Seventh and Magnetic (via Underwriters) tendered the Mena Action to First
Mercury and Hudson claiming that they were entitled to additional insured coverage under the
policies issued to AG&V pursuant to the terms of the demolition contract between Magnetic and
AG&V.
16. In response to the tender, First Mercury agreed to provide 485 Seventh and
Magnetic with additional insured coverage under the First Mercury Policy on a primary basis.
17. First Mercury thus has assumed the defense of 485 Seventh and Magnetic in the
Mena Action.
18. There is no dispute that the First Mercury Policy applies first with respect to the
Mena Action.
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THE PRIORITY OF COVERAGE DISPUTE
19. The Underwriters Policy issued to 485 Seventh and Magnetic is a primary policy
issued to 485 Seventh and Magnetic that provides that it is excess over any primary insurance
available to 485 Seventh and Magnetic for damages arising out of operations for which 485
Seventh and Magnetic have been added as additional insureds.
20. The Underwriters Policy is excess of the First Mercury Policy for the Mena
Accident because the First Mercury Policy is a primary policy that extends additional insured
coverage to 485 Seventh and Magnetic. This is also not in dispute.
21. To the extent the Hudson Policy provides additional insured coverage to 485
Seventh and Magnetic, it does so on an excess basis only and expressly states that its coverage is
excess and shall not contribute with any other insurance.
22. Based on its provisions, the Hudson Policy is excess of all primary insurance
available to 485 Seventh and Magnetic in the Mena Action, including the First Mercury Policy
and the Underwriters Policy.
23. The Hudson Policy thus does not apply to 485 Seventh and Magnetic in the Mena
Action unless and until there is exhaustion of the $1 million limits of the First Mercury Policy and
exhaustion of the $2 million limits of the Underwriters Policy.
24. Although the Underwriters Policy expressly provides primary coverage and the
Hudson Policy expressly provides excess coverage, Underwriters has improperly asserted that its
coverage is excess of all coverage available to 485 Seventh and Magnetic with respect to the Mena
Action, including the Hudson policy.
25. Hudson duly demanded that Underwriters assume its proper position vis-à-vis the
Hudson Excess Policy by letter dated February 7, 2022. See Exhibit C.
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26. Although the Underwriters Policy provides coverage to 485 Seventh and Magnetic
for the Mena Claim immediately upon exhaustion of the First Mercury Policy, Underwriters has
refused to acknowledge its coverage obligation and has refused to provide coverage to 485 Seventh
and Magnetic for the Mena Action immediately excess of the First Mercury Policy. See Exhibit
D.
27. Because the Mena Action appears likely to exceed the $1 million limits of the First
Mercury Policy, Hudson has been damaged by Underwriters’ wrongful refusal to acknowledge its
coverage obligation and to apply its coverage to 485 Seventh and Magnetic in the Mena Action
immediately excess of the First Mercury Policy’s coverage.
PROCEDURAL HISTORY OF THIS ACTION
28. Plaintiff commenced this action by filing its summons and complaint on June 3,
2022. See Exhibit E, which is Docket #1 to this action.
29. Underwriters answered the complaint and asserted counter-claims by itsanswer
filed on June 27, 2022. See Exhibit F, which is Docket #3 to this action.
30. Hudson filed its reply to Underwriters’ counter-claims on July 15, 2022. See
Exhibit G, which is Docket #5 to this action.
Dated: New York, New York
October 27, 2022
Respectfully Submitted,
/s/ Michael F. Panayotou
Michael F. Panayotou, Esq.
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Preview
FILED: NEW YORK COUNTY CLERK 10/27/2022 10:29 AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HUDSON EXCESS INSURANCE COMPANY, Index No.: 656604/2022 Plaintiff, -against- STATEMENT OF MATERIAL FACTS CERTAIN UNDERWRITERS AT LLOYD’S LONDON subscribing to Policy No. LCC-000058, Defendant. Plaintiff Hudson Excess Insurance Company (“Hudson” or “Plaintiff”) by and through its attorneys Melito & Adolfsen P.C., hereby respectfully submits to the Court the following Statement of Material Facts to which there is no genuine issue to be tried in support of its motion for summary judgment: BACKGROUND 1. By way of background, this insurance action relates to a certain underlying action commenced in Bronx Supreme Court by Edwin Mena styled Edwin Mena v. 485 Seventh Avenue Associates LLC, et al., Index No. 20345/2017E, seeking to recover damages from non-parties 485 Seventh Avenue Associates LLC (“485 Seventh”), which is the building owner, and Magnetic Builders Group (“Magnetic”), which is the construction manager. Underwriters insures both 485 Seventh and Magnetic on a primary basis. 2. 485 Seventh was the Project owner, and Magnetic acted as the construction manager on the Project. 3. AG&V was hired by Magnetic to perform demolition work on the Project. 4. Claimant Mena was allegedly injured when a piece of concrete ceiling fell on him while he was demolishing a wall at the Project (the “Mena Accident”). 1 1 of 7 FILED: NEW YORK COUNTY CLERK 10/27/2022 10:29 AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/27/2022 5. Mena filed suit in New York Supreme Court, Bronx County captioned Edwin Mena v. 485 Seventh Avenue Associates LLC, et al. (Index No. 20345/2017E) seeking to recover damages from 485 Seventh and Magnetic for his injuries allegedly sustained in the Mena Accident (the “Mena Action”). 6. The Court in the Mena Action granted plaintiff summary judgment against 485 Seventh and Magnetic finding them liable as a matter of law under New York Labor Law §2410(1). 7. The summary judgment ruling against 485 Seventh and Magnetic in the Mena Action has been affirmed by the Appellate Division, First Department. 8. The Mena Action will proceed to a trial on damages against 485 Seventh and Magnetic. THE POLICIES 9. Non-party First Mercury Insurance Company (“First Mercury”) issued Commercial General Liability Policy No. NY-CGL-0000057791-01 to A&GV Stucco Construction Corp. (“A&GV”) for the period 9/18/15 to 9/18/16 with limits of $1 million per occurrence (the “First Mercury Policy”). 10. Hudson issued Commercial Excess Liability Policy No. HXMX200348 to A&GV for the period 9/18/15 to 9/18/16 with limits of $5 million per occurrence excess of the $1 million First Mercury Policy (the “Hudson Excess Policy”). See Exhibit A, which is a certified copy of the Hudson Excess Policy. The Hudson Excess Policy is discussed infra. 11. Underwriters issued Commercial General Liability Policy No. LCC-000058 to 485 Seventh Ave. Associates LLC (“485 Seventh”) and Magnetic Builders Group (“Magnetic”) for the period 8/31/15 to 6/30/17 with limits of $2 million per occurrence (the “Underwriters Policy”). See Exhibit B, which is the Underwriters Policy. Underwriters has admitted that the Underwriters 2 2 of 7 FILED: NEW YORK COUNTY CLERK 10/27/2022 10:29 AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/27/2022 Policy is a true and correct copy of the Underwriters Policy by declining to object to Hudson’s Notice to Admit, Docket #6. 12. The Underwriters Policy contains the following standard “other insurance” language in form CG00011207: 4. Other Insurance If other valid and collectible insurance is available to the insured for a loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as follows: a. Primary Insurance This insurance is primary except when Paragraph b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in Paragraph c. below. b. Excess Insurance (1) This insurance is excess over: (a) Any of the other insurance, whether primary, excess, contingent or on any other basis: (i) That is Fire, Extended Coverage, Builder’s Risk, Installation Risk or similar coverage for “your work”; (ii) That is Fire insurance for premises Rented to you or temporarily occu- pied by you with permission of the owner; (iii) That is insurance purchased by you to cover your liability as a tenant for “property damage” to premises rent- ed to you or temporarily occupied by you with permission of the owner; or 3 3 of 7 FILED: NEW YORK COUNTY CLERK 10/27/2022 10:29 AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/27/2022 (iv) If the loss arises out of the mainte- nance or use of aircraft, “autos” or watercraft to the extent not subject to Exclusion g. of Section I – Coverage A – Bodily Injury and Property Dam- age Liability. (b) Any other primary insurance available to you covering liability for damages arising out of the premises or operations, or the products and completed operations, for which you have been added as an additional insured. See Exhibit B, page 48 [emphasis added]. 13. The Hudson Excess Policy contains the following language in coverage form CX00010413: 8. Other Insurance a. This insurance is excess over, and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis. This condition will not apply to insurance specifically written as excess over this Coverage Part. * * * b. When this insurance is excess over other insurance, we will pay only our share of the “ultimate net loss” that exceeds the sum of: (1) The total amount that all such other Insurance would pay for the loss in the absence of the insurance provided under this Coverage Part; and (2) The total of all deductible and self-insured amounts under all that other insurance. See Exhibit A, page 11. 4 4 of 7 FILED: NEW YORK COUNTY CLERK 10/27/2022 10:29 AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/27/2022 14. The Hudson Excess Policy also contains an endorsement titled “Excess Liability Primary and Non-Contributory Coverage,” Form HXME2260715, which reads in relevant part as follows: Section III – Conditions, 8. Other insurance is amended at the following added: It is agreed that such insurance as is afforded by this policy for the benefit of an Additional Insured shall be primary to, and on a non-contributory basis with, any other excess insurance available to such Additional Insured, provided that you are specifically required by a written contract to provide such insurance and the contract is executed by you before any “event.” Coverage shall be limited to the extent required by the written contract. See Exhibit A, page 41 [emphasis added]. THE TENDER BY UNDERWRITERS AND ACCEPTANCE BY FIRST MERCURY 15. 485 Seventh and Magnetic (via Underwriters) tendered the Mena Action to First Mercury and Hudson claiming that they were entitled to additional insured coverage under the policies issued to AG&V pursuant to the terms of the demolition contract between Magnetic and AG&V. 16. In response to the tender, First Mercury agreed to provide 485 Seventh and Magnetic with additional insured coverage under the First Mercury Policy on a primary basis. 17. First Mercury thus has assumed the defense of 485 Seventh and Magnetic in the Mena Action. 18. There is no dispute that the First Mercury Policy applies first with respect to the Mena Action. 5 5 of 7 FILED: NEW YORK COUNTY CLERK 10/27/2022 10:29 AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/27/2022 THE PRIORITY OF COVERAGE DISPUTE 19. The Underwriters Policy issued to 485 Seventh and Magnetic is a primary policy issued to 485 Seventh and Magnetic that provides that it is excess over any primary insurance available to 485 Seventh and Magnetic for damages arising out of operations for which 485 Seventh and Magnetic have been added as additional insureds. 20. The Underwriters Policy is excess of the First Mercury Policy for the Mena Accident because the First Mercury Policy is a primary policy that extends additional insured coverage to 485 Seventh and Magnetic. This is also not in dispute. 21. To the extent the Hudson Policy provides additional insured coverage to 485 Seventh and Magnetic, it does so on an excess basis only and expressly states that its coverage is excess and shall not contribute with any other insurance. 22. Based on its provisions, the Hudson Policy is excess of all primary insurance available to 485 Seventh and Magnetic in the Mena Action, including the First Mercury Policy and the Underwriters Policy. 23. The Hudson Policy thus does not apply to 485 Seventh and Magnetic in the Mena Action unless and until there is exhaustion of the $1 million limits of the First Mercury Policy and exhaustion of the $2 million limits of the Underwriters Policy. 24. Although the Underwriters Policy expressly provides primary coverage and the Hudson Policy expressly provides excess coverage, Underwriters has improperly asserted that its coverage is excess of all coverage available to 485 Seventh and Magnetic with respect to the Mena Action, including the Hudson policy. 25. Hudson duly demanded that Underwriters assume its proper position vis-à-vis the Hudson Excess Policy by letter dated February 7, 2022. See Exhibit C. 6 6 of 7 FILED: NEW YORK COUNTY CLERK 10/27/2022 10:29 AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/27/2022 26. Although the Underwriters Policy provides coverage to 485 Seventh and Magnetic for the Mena Claim immediately upon exhaustion of the First Mercury Policy, Underwriters has refused to acknowledge its coverage obligation and has refused to provide coverage to 485 Seventh and Magnetic for the Mena Action immediately excess of the First Mercury Policy. See Exhibit D. 27. Because the Mena Action appears likely to exceed the $1 million limits of the First Mercury Policy, Hudson has been damaged by Underwriters’ wrongful refusal to acknowledge its coverage obligation and to apply its coverage to 485 Seventh and Magnetic in the Mena Action immediately excess of the First Mercury Policy’s coverage. PROCEDURAL HISTORY OF THIS ACTION 28. Plaintiff commenced this action by filing its summons and complaint on June 3, 2022. See Exhibit E, which is Docket #1 to this action. 29. Underwriters answered the complaint and asserted counter-claims by itsanswer filed on June 27, 2022. See Exhibit F, which is Docket #3 to this action. 30. Hudson filed its reply to Underwriters’ counter-claims on July 15, 2022. See Exhibit G, which is Docket #5 to this action. Dated: New York, New York October 27, 2022 Respectfully Submitted, /s/ Michael F. Panayotou Michael F. Panayotou, Esq. 7 7 of 7