Preview
FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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HARLEYSVILLE INSURANCE COMPANY,
Index No. 713217/2023
Plaintiff,
ANSWER WITH
-against- AFFIRMATIVE
DEFENSES
MERCHANTS PREFERRED INSURANCE
COMPANY AND MERCHANTS MUTUAL
INSURANCE COMPANY,
Defendants.
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Defendants MERCHANTS PREFERRED INSURANCE COMPANY (“Merchants
Preferred”) and MERCHANTS MUTUAL INSURANCE COMPANY (“Merchants Mutual”)
(collectively, “Merchants”), by their attorneys, Zimring Brouk PLLC, answering the June 27, 2023
Complaint for Declaratory Judgment of plaintiff Harleysville Insurance Company
(“Harleysville”), respectfully state as follows:
1. Deny each and every allegation contained in paragraph “1” of the Complaint to the
extent Harleysville suggests that Merchants Preferred and/or Merchants Mutual owe insurance
coverage to 2323 Development Corp DBA JTC Associates (“JTC”) or National Elevator Cab &
Door Corp. (“NECDC”) in connection with the personal injury action entitled Paul Brady v.
National Elevator Cab & Door Corp. et al., which is pending in the Supreme Court of New York,
County of Queens, under index no. 709899/2020 (“Underlying Action”), and refer questions of
law to the Court.
2. Deny each and every allegation contained in paragraph “2” of the Complaint to the
extent Harleysville suggests that Merchants Preferred and/or Merchants Mutual owe
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reimbursement to Harleysville for amounts it has allegedly expended in the defense of JTC in
connection with the Underlying Action and refer questions of law to the Court.
3. Deny each and every allegation contained in paragraph “3” of the Complaint and
refer questions of law to the Court.
4. Deny any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “4” of the Complaint.
5. Deny each and every allegation contained in paragraph “5” of the Complaint except
admit that Merchants Preferred and Merchants Mutual each have their principal place of business
in Buffalo, New York.
6. Deny each and every allegation contained in paragraph “6” of the Complaint and
refer questions of law to the Court.
7. Deny each and every allegation contained in paragraph “7” of the Complaint and
refer questions of law to the Court.
8. Deny each and every allegation contained in paragraph “8” of the Complaint and
refer questions of law to the Court.
9. Deny each and every allegation contained in paragraph “9” of the Complaint except
admit that Merchants Preferred issued a commercial general liability policy, number
CMP9156278, to named insured Redgrave Electrical Maintenance Inc for the September 26, 2019
to September 26, 2020 policy period, with a $1,000,000 each occurrence limit and a $2,000,000
general aggregate limit (“Merchants Preferred CGL Policy”).
10. Deny each and every allegation contained in paragraph “10” of the Complaint
except admit that Merchants Mutual issued a commercial liability umbrella policy, number
CUP9149208, to named insured Redgrave Electrical Maintenance Inc for the September 26, 2019
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to September 26, 2020 policy period, with a $5,000,000 limit of insurance and a $5,000,000 policy
aggregate limit (“Merchants Mutual Umbrella Policy”).
11. Deny any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “11” of the Complaint.
12. Deny any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “12” of the Complaint, refer questions of law to the Court and respectfully
refer the Court to the alleged “Contract” between NECDC and JTC for its terms.
13. Deny any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “13” of the Complaint.
14. Deny any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “14” of the Complaint.
15. Deny any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “15” of the Complaint, refer questions of law to the Court and respectfully
refer the Court to the alleged “Subcontract” between JTC and Redgrave for its terms.
16. Deny any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “16” of the Complaint, refer questions of law to the Court and respectfully
refer the Court to the alleged “Subcontract” between JTC and Redgrave for its terms.
17. Deny any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “17” of the Complaint, refer questions of law to the Court and respectfully
refer the Court to the alleged “Subcontract” between JTC and Redgrave for its terms.
18. Deny any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “18” of the Complaint, refer questions of law to the Court and respectfully
refer the Court to the alleged “Subcontract” between JTC and Redgrave for its terms.
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19. Deny each and every allegation contained in paragraph “19” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Complaint in the Underlying
Action for its allegations.
20. Deny each and every allegation contained in paragraph “20” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to JTC’s Third-Party Complaint in
the Underlying Action for its allegations.
21. Deny any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “21” of the Complaint,, refer questions of law to the Court and respectfully
refer the Court to Harleysville’s alleged May 19, 2020 tender demand letter for its contents.
22. Deny each and every allegation contained in paragraph “22” of the Complaint and
specifically, Harleysville’s contention that in its November 13, 2020 letter, Harleysville “reiterated
its tender” to Merchants, refer questions of law to the Court and respectfully refer the Court to
Harleysville’s alleged November 13, 2020 tender demand letter for its contents.
23. Deny each and every allegation contained in paragraph “23” of the Complaint,
except admit that in a letter dated March 26, 2021 and directed to Brian L. Gordon, Esq., Merchants
disclaimed any obligation to defend or indemnify JTCA and/or NECDC as putative additional
insureds or contractual indemnitees under the Merchants Preferred CGL Policy or the Merchants
Mutual Umbrella Policy, and refer questions of law to the Court.
24. Deny any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “24” of the Complaint, refer questions of law to the Court and respectfully
refer the Court to Harleysville’s alleged July 29, 2022 tender demand letter for its contents.
25. Admit the allegations contained in paragraph “25” of the Complaint.
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ANSWERING COUNT ONE AGAINST MERCHANTS
PREFERRED INSURANCE COMPANY
26. Repeat and reiterate each and every denial hereinbefore made with the same force
and effect as though the same were set forth at length herein in answer to paragraph number “26”
of the Complaint.
27. Deny each and every allegation contained in paragraph “27” of the Complaint,
except admit that Merchants Preferred issued the aforementioned Merchants Preferred CGL
Policy, refer questions of law to the Court and respectfully refer the Court to the Merchants
Preferred CGL Policy for it terms, conditions, exclusions, definitions and endorsements.
28. Deny each and every allegation contained in paragraph “28” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL
Policy for its terms, conditions, exclusions, endorsements and definitions.
29. Deny each and every allegation contained in paragraph “29” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL
Policy for its terms, conditions, exclusions, endorsements and definitions.
30. Deny each and every allegation contained in paragraph “30” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL
Policy for its terms, conditions, exclusions, endorsements and definitions.
31. Deny each and every allegation contained in paragraph “31” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL
Policy for its terms, conditions, exclusions, endorsements and definitions.
32. Deny each and every allegation contained in paragraph “32” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL
Policy for its terms, conditions, exclusions, endorsements and definitions.
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33. Deny each and every allegation contained in paragraph “33” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL
Policy for its terms, conditions, exclusions, endorsements and definitions.
34. Deny each and every allegation contained in paragraph “34” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL
Policy for its terms, conditions, exclusions, endorsements and definitions.
35. Deny each and every allegation contained in paragraph “35” of the Complaint
except admit that Merchants Preferred has properly denied any obligation to defend or indemnify
JTC and NECDC in connection with the Underlying Action, refer questions of law to the Court
and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions,
exclusions, endorsements and definitions.
36. Deny each and every allegation contained in paragraph “36” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL
Policy for its terms, conditions, exclusions, endorsements and definitions.
37. Deny each and every allegation contained in paragraph “37” of the Complaint and
refer questions of law to the Court.
38. Deny each and every allegation contained in paragraph “38” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL
Policy for its terms, conditions, exclusions, endorsements and definitions.
ANSWERING COUNT TWO AGAINST MERCHANTS
PREFERRED INSURANCE COMPANY
39. Repeat and reiterate each and every denial hereinbefore made with the same force
and effect as though the same were set forth at length herein in answer to paragraph number “39”
of the Complaint.
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40. Deny any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “40” of the Complaint.
41. Deny each and every allegation contained in paragraph “41” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL
Policy for its terms, conditions, exclusions, endorsements and definitions.
42. Deny each and every allegation contained in paragraph “42” of the Complaint and
refer questions of law to the Court.
43. Deny each and every allegation contained in paragraph “43” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL
Policy for its terms, conditions, exclusions, endorsements and definitions.
44. Deny each and every allegation contained in paragraph “44” of the Complaint and
refer questions of law to the Court.
ANSWERING COUNT THREE AGAINST MERCHANTS
MUTUAL INSURANCE COMPANY
45. Repeat and reiterate each and every denial hereinbefore made with the same force
and effect as though the same were set forth at length herein in answer to paragraph number “45”
of the Complaint.
46. Deny each and every allegation contained in paragraph “46” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella
Policy for its terms, conditions, exclusions, endorsements and definitions.
47. Deny each and every allegation contained in paragraph “47” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella
Policy for its terms, conditions, exclusions, endorsements and definitions.
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48. Deny each and every allegation contained in paragraph “48” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella
Policy for its terms, conditions, exclusions, endorsements and definitions.
49. Deny each and every allegation contained in paragraph “49” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella
Policy for its terms, conditions, exclusions, endorsements and definitions.
50. Deny each and every allegation contained in paragraph “50” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella
Policy for its terms, conditions, exclusions, endorsements and definitions.
51. Deny each and every allegation contained in paragraph “51” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella
Policy for its terms, conditions, exclusions, endorsements and definitions.
52. Deny each and every allegation contained in paragraph “52” of the Complaint
except admit that Merchants Mutual has properly denied any obligation to defend or indemnify
JTC and NECDC in connection with the Underlying Action, refer questions of law to the Court
and respectfully refer the Court to the Merchants Mutual Umbrella Policy for its terms, conditions,
exclusions, endorsements and definitions.
53. Deny each and every allegation contained in paragraph “53” of the Complaint and
refer questions of law to the Court.
54. Deny each and every allegation contained in paragraph “54” of the Complaint, refer
questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella
Policy for its terms, conditions, exclusions, endorsements and definitions.
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55. Deny each and every allegation contained in paragraph “55” of the Complaint and
refer questions of law to the Court.
ANSWERING COUNT FOUR AGAINST MERCHANTS
MUTUAL INSURANCE COMPANY
56. Repeat and reiterate each and every denial hereinbefore made with the same force
and effect as though the same were set forth at length herein in answer to paragraph number “56”
of the Complaint.
57. Deny each and every allegation contained in paragraph “57” of the Complaint and
refer questions of law to the Court.
58. Deny each and every allegation contained in paragraph “58” of the Complaint and
refer questions of law to the Court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
59. The Complaint fails to state a claim upon which relief may be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
60. JTC and NECDC do not satisfy the requirements for additional insured coverage
under the Merchants Preferred CGL Policy or the Merchants Mutual Umbrella Policy.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
61. Merchants’ named insured, Redgrave, did not agree in writing in a contract or
agreement with JTC or NECDC to name them as additional insureds under the Merchants
Preferred CGL Policy or the Merchants Mutual Umbrella Policy.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
62. The underlying accident and the alleged liability of JTC and/or NECDC, was not
caused by the acts or omissions of Redgrave or those acting on its behalf, in the performance of
ongoing operations for the putative additional insured(s).
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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
63. The alleged liability of JTC and/or NECDC was proximately caused by their own
acts or omissions, and/or others aside from Redgrave or those acting on its behalf.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
64. JTC and/or NECDC, or others besides Redgrave or those acting on its behalf, were
solely responsible for the underlying plaintiff’s alleged accident and injuries.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
65. Even if JTC and/or NECDC could qualify as additional insured(s) under the
Merchants Preferred CGL Policy and/or the Merchants Mutual Umbrella Policy (both of which
are denied), such coverage would be excess over the Harleysville policy by virtue of the respective
“other insurance” provisions and the fact that the Merchants Mutual Umbrella Policy is a true
excess/umbrella policy.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
66. Even if JTC and/or NECDC qualified as additional insured(s) under the Merchants
Preferred CGL Policy (which is denied), they do not qualify as insureds under the Merchants
Mutual Umbrella Policy.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
67. Defendants reserve the right to rely on all applicable terms, conditions and
exclusions of the Merchants Preferred CGL Policy and the Merchants Mutual Umbrella Policy.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
68. Even if Merchants Preferred had a defense obligation to JTC and/or NECDC
(which is denied), any such obligation would be limited to the reasonable and necessary fees and
costs, and then only from the date the underlying action was tendered to Merchants Preferred.
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AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
69. Even if Merchants Preferred had a defense obligation to JTC and/or NECDC
(which is denied), the Harleysville policy would not be excess over the Merchants Preferred CGL
Policy as to any person or organization that is not a named insured under the Harleysville policy.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
70. Even if JTC and/or NECDC qualified as additional insured(s) under the Merchants
Preferred CGL Policy (which is denied), such coverage would be excess over or be co-insurance
with the coverage afforded under the Harleysville policy as to JTC and/or NECDC.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
71. Even if JTC and/or NECDC qualified as additional insured(s) under the Merchants
Mutual Umbrella Policy (which is denied), such coverage would be excess over the Harleysville
policy as to JTC and/or NECDC.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
72. Merchants Preferred and Merchants Mutual incorporate by reference all coverage
defenses raises in their prior coverage-related correspondence.
WHEREFORE, Merchants Preferred and Merchants Mutual demand judgment
dismissing the Complaint, declaring that they have no obligation to defend or indemnify JTC
and/or NECDC in connection with the Underlying Action, that no obligation to reimburse
Harleysville for any defense fees or costs related to the Underlying Action, together with the
attorneys' fees, costs and disbursements of this action.
Dated: New York, New York
November 15, 2023
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Respectfully submitted,
ZIMRING BROUK PLLC
/s Joshua Zimring
________________________________
Joshua C. Zimring
Attorneys for Defendants
MERCHANTS PREFERRED INSURANCE
COMPANY AND MERCHANTS MUTUAL
INSURANCE COMPANY
42 Broadway, Suite 12-142
New York, New York 10004
(212) 508-4747
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Preview
FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ----------------------------------------------------------------x HARLEYSVILLE INSURANCE COMPANY, Index No. 713217/2023 Plaintiff, ANSWER WITH -against- AFFIRMATIVE DEFENSES MERCHANTS PREFERRED INSURANCE COMPANY AND MERCHANTS MUTUAL INSURANCE COMPANY, Defendants. ----------------------------------------------------------------x Defendants MERCHANTS PREFERRED INSURANCE COMPANY (“Merchants Preferred”) and MERCHANTS MUTUAL INSURANCE COMPANY (“Merchants Mutual”) (collectively, “Merchants”), by their attorneys, Zimring Brouk PLLC, answering the June 27, 2023 Complaint for Declaratory Judgment of plaintiff Harleysville Insurance Company (“Harleysville”), respectfully state as follows: 1. Deny each and every allegation contained in paragraph “1” of the Complaint to the extent Harleysville suggests that Merchants Preferred and/or Merchants Mutual owe insurance coverage to 2323 Development Corp DBA JTC Associates (“JTC”) or National Elevator Cab & Door Corp. (“NECDC”) in connection with the personal injury action entitled Paul Brady v. National Elevator Cab & Door Corp. et al., which is pending in the Supreme Court of New York, County of Queens, under index no. 709899/2020 (“Underlying Action”), and refer questions of law to the Court. 2. Deny each and every allegation contained in paragraph “2” of the Complaint to the extent Harleysville suggests that Merchants Preferred and/or Merchants Mutual owe 1 of 12 FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 reimbursement to Harleysville for amounts it has allegedly expended in the defense of JTC in connection with the Underlying Action and refer questions of law to the Court. 3. Deny each and every allegation contained in paragraph “3” of the Complaint and refer questions of law to the Court. 4. Deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “4” of the Complaint. 5. Deny each and every allegation contained in paragraph “5” of the Complaint except admit that Merchants Preferred and Merchants Mutual each have their principal place of business in Buffalo, New York. 6. Deny each and every allegation contained in paragraph “6” of the Complaint and refer questions of law to the Court. 7. Deny each and every allegation contained in paragraph “7” of the Complaint and refer questions of law to the Court. 8. Deny each and every allegation contained in paragraph “8” of the Complaint and refer questions of law to the Court. 9. Deny each and every allegation contained in paragraph “9” of the Complaint except admit that Merchants Preferred issued a commercial general liability policy, number CMP9156278, to named insured Redgrave Electrical Maintenance Inc for the September 26, 2019 to September 26, 2020 policy period, with a $1,000,000 each occurrence limit and a $2,000,000 general aggregate limit (“Merchants Preferred CGL Policy”). 10. Deny each and every allegation contained in paragraph “10” of the Complaint except admit that Merchants Mutual issued a commercial liability umbrella policy, number CUP9149208, to named insured Redgrave Electrical Maintenance Inc for the September 26, 2019 2 of 12 FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 to September 26, 2020 policy period, with a $5,000,000 limit of insurance and a $5,000,000 policy aggregate limit (“Merchants Mutual Umbrella Policy”). 11. Deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “11” of the Complaint. 12. Deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “12” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the alleged “Contract” between NECDC and JTC for its terms. 13. Deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “13” of the Complaint. 14. Deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “14” of the Complaint. 15. Deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “15” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the alleged “Subcontract” between JTC and Redgrave for its terms. 16. Deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “16” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the alleged “Subcontract” between JTC and Redgrave for its terms. 17. Deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “17” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the alleged “Subcontract” between JTC and Redgrave for its terms. 18. Deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “18” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the alleged “Subcontract” between JTC and Redgrave for its terms. 3 of 12 FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 19. Deny each and every allegation contained in paragraph “19” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Complaint in the Underlying Action for its allegations. 20. Deny each and every allegation contained in paragraph “20” of the Complaint, refer questions of law to the Court and respectfully refer the Court to JTC’s Third-Party Complaint in the Underlying Action for its allegations. 21. Deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “21” of the Complaint,, refer questions of law to the Court and respectfully refer the Court to Harleysville’s alleged May 19, 2020 tender demand letter for its contents. 22. Deny each and every allegation contained in paragraph “22” of the Complaint and specifically, Harleysville’s contention that in its November 13, 2020 letter, Harleysville “reiterated its tender” to Merchants, refer questions of law to the Court and respectfully refer the Court to Harleysville’s alleged November 13, 2020 tender demand letter for its contents. 23. Deny each and every allegation contained in paragraph “23” of the Complaint, except admit that in a letter dated March 26, 2021 and directed to Brian L. Gordon, Esq., Merchants disclaimed any obligation to defend or indemnify JTCA and/or NECDC as putative additional insureds or contractual indemnitees under the Merchants Preferred CGL Policy or the Merchants Mutual Umbrella Policy, and refer questions of law to the Court. 24. Deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “24” of the Complaint, refer questions of law to the Court and respectfully refer the Court to Harleysville’s alleged July 29, 2022 tender demand letter for its contents. 25. Admit the allegations contained in paragraph “25” of the Complaint. 4 of 12 FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 ANSWERING COUNT ONE AGAINST MERCHANTS PREFERRED INSURANCE COMPANY 26. Repeat and reiterate each and every denial hereinbefore made with the same force and effect as though the same were set forth at length herein in answer to paragraph number “26” of the Complaint. 27. Deny each and every allegation contained in paragraph “27” of the Complaint, except admit that Merchants Preferred issued the aforementioned Merchants Preferred CGL Policy, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for it terms, conditions, exclusions, definitions and endorsements. 28. Deny each and every allegation contained in paragraph “28” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions, exclusions, endorsements and definitions. 29. Deny each and every allegation contained in paragraph “29” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions, exclusions, endorsements and definitions. 30. Deny each and every allegation contained in paragraph “30” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions, exclusions, endorsements and definitions. 31. Deny each and every allegation contained in paragraph “31” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions, exclusions, endorsements and definitions. 32. Deny each and every allegation contained in paragraph “32” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions, exclusions, endorsements and definitions. 5 of 12 FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 33. Deny each and every allegation contained in paragraph “33” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions, exclusions, endorsements and definitions. 34. Deny each and every allegation contained in paragraph “34” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions, exclusions, endorsements and definitions. 35. Deny each and every allegation contained in paragraph “35” of the Complaint except admit that Merchants Preferred has properly denied any obligation to defend or indemnify JTC and NECDC in connection with the Underlying Action, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions, exclusions, endorsements and definitions. 36. Deny each and every allegation contained in paragraph “36” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions, exclusions, endorsements and definitions. 37. Deny each and every allegation contained in paragraph “37” of the Complaint and refer questions of law to the Court. 38. Deny each and every allegation contained in paragraph “38” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions, exclusions, endorsements and definitions. ANSWERING COUNT TWO AGAINST MERCHANTS PREFERRED INSURANCE COMPANY 39. Repeat and reiterate each and every denial hereinbefore made with the same force and effect as though the same were set forth at length herein in answer to paragraph number “39” of the Complaint. 6 of 12 FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 40. Deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “40” of the Complaint. 41. Deny each and every allegation contained in paragraph “41” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions, exclusions, endorsements and definitions. 42. Deny each and every allegation contained in paragraph “42” of the Complaint and refer questions of law to the Court. 43. Deny each and every allegation contained in paragraph “43” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Preferred CGL Policy for its terms, conditions, exclusions, endorsements and definitions. 44. Deny each and every allegation contained in paragraph “44” of the Complaint and refer questions of law to the Court. ANSWERING COUNT THREE AGAINST MERCHANTS MUTUAL INSURANCE COMPANY 45. Repeat and reiterate each and every denial hereinbefore made with the same force and effect as though the same were set forth at length herein in answer to paragraph number “45” of the Complaint. 46. Deny each and every allegation contained in paragraph “46” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella Policy for its terms, conditions, exclusions, endorsements and definitions. 47. Deny each and every allegation contained in paragraph “47” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella Policy for its terms, conditions, exclusions, endorsements and definitions. 7 of 12 FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 48. Deny each and every allegation contained in paragraph “48” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella Policy for its terms, conditions, exclusions, endorsements and definitions. 49. Deny each and every allegation contained in paragraph “49” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella Policy for its terms, conditions, exclusions, endorsements and definitions. 50. Deny each and every allegation contained in paragraph “50” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella Policy for its terms, conditions, exclusions, endorsements and definitions. 51. Deny each and every allegation contained in paragraph “51” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella Policy for its terms, conditions, exclusions, endorsements and definitions. 52. Deny each and every allegation contained in paragraph “52” of the Complaint except admit that Merchants Mutual has properly denied any obligation to defend or indemnify JTC and NECDC in connection with the Underlying Action, refer questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella Policy for its terms, conditions, exclusions, endorsements and definitions. 53. Deny each and every allegation contained in paragraph “53” of the Complaint and refer questions of law to the Court. 54. Deny each and every allegation contained in paragraph “54” of the Complaint, refer questions of law to the Court and respectfully refer the Court to the Merchants Mutual Umbrella Policy for its terms, conditions, exclusions, endorsements and definitions. 8 of 12 FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 55. Deny each and every allegation contained in paragraph “55” of the Complaint and refer questions of law to the Court. ANSWERING COUNT FOUR AGAINST MERCHANTS MUTUAL INSURANCE COMPANY 56. Repeat and reiterate each and every denial hereinbefore made with the same force and effect as though the same were set forth at length herein in answer to paragraph number “56” of the Complaint. 57. Deny each and every allegation contained in paragraph “57” of the Complaint and refer questions of law to the Court. 58. Deny each and every allegation contained in paragraph “58” of the Complaint and refer questions of law to the Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 59. The Complaint fails to state a claim upon which relief may be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 60. JTC and NECDC do not satisfy the requirements for additional insured coverage under the Merchants Preferred CGL Policy or the Merchants Mutual Umbrella Policy. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 61. Merchants’ named insured, Redgrave, did not agree in writing in a contract or agreement with JTC or NECDC to name them as additional insureds under the Merchants Preferred CGL Policy or the Merchants Mutual Umbrella Policy. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 62. The underlying accident and the alleged liability of JTC and/or NECDC, was not caused by the acts or omissions of Redgrave or those acting on its behalf, in the performance of ongoing operations for the putative additional insured(s). 9 of 12 FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 63. The alleged liability of JTC and/or NECDC was proximately caused by their own acts or omissions, and/or others aside from Redgrave or those acting on its behalf. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 64. JTC and/or NECDC, or others besides Redgrave or those acting on its behalf, were solely responsible for the underlying plaintiff’s alleged accident and injuries. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 65. Even if JTC and/or NECDC could qualify as additional insured(s) under the Merchants Preferred CGL Policy and/or the Merchants Mutual Umbrella Policy (both of which are denied), such coverage would be excess over the Harleysville policy by virtue of the respective “other insurance” provisions and the fact that the Merchants Mutual Umbrella Policy is a true excess/umbrella policy. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 66. Even if JTC and/or NECDC qualified as additional insured(s) under the Merchants Preferred CGL Policy (which is denied), they do not qualify as insureds under the Merchants Mutual Umbrella Policy. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 67. Defendants reserve the right to rely on all applicable terms, conditions and exclusions of the Merchants Preferred CGL Policy and the Merchants Mutual Umbrella Policy. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 68. Even if Merchants Preferred had a defense obligation to JTC and/or NECDC (which is denied), any such obligation would be limited to the reasonable and necessary fees and costs, and then only from the date the underlying action was tendered to Merchants Preferred. 10 of 12 FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 69. Even if Merchants Preferred had a defense obligation to JTC and/or NECDC (which is denied), the Harleysville policy would not be excess over the Merchants Preferred CGL Policy as to any person or organization that is not a named insured under the Harleysville policy. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 70. Even if JTC and/or NECDC qualified as additional insured(s) under the Merchants Preferred CGL Policy (which is denied), such coverage would be excess over or be co-insurance with the coverage afforded under the Harleysville policy as to JTC and/or NECDC. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 71. Even if JTC and/or NECDC qualified as additional insured(s) under the Merchants Mutual Umbrella Policy (which is denied), such coverage would be excess over the Harleysville policy as to JTC and/or NECDC. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 72. Merchants Preferred and Merchants Mutual incorporate by reference all coverage defenses raises in their prior coverage-related correspondence. WHEREFORE, Merchants Preferred and Merchants Mutual demand judgment dismissing the Complaint, declaring that they have no obligation to defend or indemnify JTC and/or NECDC in connection with the Underlying Action, that no obligation to reimburse Harleysville for any defense fees or costs related to the Underlying Action, together with the attorneys' fees, costs and disbursements of this action. Dated: New York, New York November 15, 2023 11 of 12 FILED: QUEENS COUNTY CLERK 11/15/2023 05:20 PM INDEX NO. 713217/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 Respectfully submitted, ZIMRING BROUK PLLC /s Joshua Zimring ________________________________ Joshua C. Zimring Attorneys for Defendants MERCHANTS PREFERRED INSURANCE COMPANY AND MERCHANTS MUTUAL INSURANCE COMPANY 42 Broadway, Suite 12-142 New York, New York 10004 (212) 508-4747 12 of 12