Preview
FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020
NEW YORK STATE: SUPREME COURT
NEW YORK COUNTY
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SOULCYCLE INC., RIVERSIDE CENTER PARCEL 2
BIT ASSOCIATES LLC, THE DERMOT COMPANY
LP, and PHILADELPHIA INDEMNITY INSURANCE Index No.: 651606/2020
COMPANY, individually and as subrogee of
SOULCYCLE INC., RIVERSIDE CENTER PARCEL 2
BIT ASSOCIATES LLC, and THE DERMOT ANSWER AND
COMPANY LP, CROSS-CLAIM
Plaintiffs,
v.
ARCH SPECIALTY INSURANCE CO. and
MT. HAWLEY INSURANCE COMPANY,
Defendants.
_____________________ _ ____________
Defendant Mt. Hawley Insurance Company ("Mt. Hawley"), by its attorneys, Delahunt
plaintiffs'
Law PLLC, for itsAnswer to Complaint:
1. Denies the allegations in paragraph 1 with respect to any and allallegations directed
to Mt. Hawley, and otherwise denies information or knowledge sufficient to admit or deny the
remaining allegations in paragraph 1.
2. States that paragraph 2 is a narrative paragraph that does not contain any allegations
that require admission or denial, and otherwise denies any and all allegations directed to Mt.
Hawley.
3. States that paragraph 3 is a narrative paragraph that does not contain any allegations
that require admission or denial, and otherwise denies any and all allegations therein.
4. States that paragraph 4 is a narrative paragraph that does not contain any allegations
that require admission or denial, and otherwise denies any and all allegations therein.
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5. States that paragraph 5 is a narrative paragraph that does not contain any allegations
that require admission or denial, and otherwise denies any and all allegations directed to Mt.
Hawley.
6. States that paragraph 6 is a narrative paragraph that does not contain any allegations
that require admission or denial, and otherwise denies any and all allegations therein.
7. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 7.
8. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 8.
9. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 9.
10. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 10.
11. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 11.
12. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 12.
13. Admits the allegations in paragraph 13.
14. Admits the allegations in paragraph 14.
15. Admits the allegations in paragraph 15, and further states that Mt. Hawley is
authorized to issue insurance policies in the State of New York as an excess and surplus lines
insurer.
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16. States that the allegations in paragraph 16 are legal conclusions to which no
admission or denial is required.
17. States that the allegations in paragraph 17 are legal conclusions to which no
admission or denial is required.
18. States that the allegations in paragraph 18 are legal conclusions to which no
admission or denial is required.
19. States that the allegations in paragraph 19 are legal conclusions to which no
admission or denial is required.
20. States that the allegations in paragraph 20 are legal conclusions to which no
admission or denial is required.
21. States that the allegations in paragraph 21 are legal conclusions to which no
admission or denial is required.
22. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 22, and further avers that the alleged policy speaks for itself and is the best statement of
itscontents.
23. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 23, and further avers that the alleged policy speaks for itself and is the best statement of
itscontents.
24. In response to the allegations in paragraph 24, states that Mt. Hawley issued a
Commercial Geñêral Liability Policy (No. MGL0183977) to JKT Construction Inc. dba: Corcon
for the period April 1, 2016 to April 1, 2017, and otherwise avers that the policy speaks for itself
and is the best statement of itscontents.
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25. In response to the allegations in paragraph 25, states that Mt. Hawley issued an
Excess Liability Policy (No. MXL0423121) to JKT Construction Inc. dba: Corcon for the period
April 1, 2016 to April 1, 2017, and otherwise avers that the policy speaks for itself and is the best
statement of its contents.
26. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 26, and further avers that the alleged contract speaks for itself and is the best statement
of itscontents.
27. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 27, otherwise states that the allegations in paragraph 27 are legal conclusions to which
no admission or denial is required, and further avers that the alleged contract speaks for itself and
is the best statement of itscontents.
28. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 28, and otherwise avers that the alleged contract speaks for itself and is the best
statement of itscontents.
29. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 29, and otherwise avers that the alleged contract speaks for itself and is the best
statement of itscontents.
30. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 30, and otherwise avers that the alleged contract speaks for itself and is the best
statement of itscontents.
31. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 31, and otherwise avers that the alleged contract speaks for itself and is the best
statement of itscontents.
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32. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 32, otherwise states that the allegations in paragraph 32 are legal conclusions to which
no admission or denial is required, and further avers that the alleged contract speaks for itself and
is the best statement of itscontents.
33. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 33.
34. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 34.
35. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 35.
36. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 36.
37. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 37.
38. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 38.
39. States that the allegations in paragraph 39 are legal conclusions to which no
admission or denial is required, but to the extent a response is required, denies the allegations in
paragraph 39, and further avers that the alleged tender letters speak for themselves and are the best
statements of their contents.
40. States that the allegations in paragraph 40 are legal conclusions to which no
admission or denial is required, but to the extent a response is required, denies the allegations in
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paragraph 40, and further avers that the alleged tender letters speak for themselves and are the best
statements of their contents.
41. In response to the allegations in paragraph 41, states that Mt. Hawley validly and
"Insureds"
timely denied any obligation to defend or indemnify the Plaintiff s (as defined in the
complaint) in connection with the underlying Polsinelli action.
42. In response to the allegations in paragraph 42, states that Mt. Hawley validly and
"Insureds"
timely denied any obligation to defend or indemnify Plaintiff's (as defmed in the
complaint) in connection with the underlying Polsinelli action.
43. In response to the allegations in paragraph 43, states that Mt. Hawley validly and
"Insureds"
timely denied any obligation to defend or indemnify Plaintiff's (as defined in the
complaint) in connection with the underlying Polsinelli action.
44. In response to the allegations in paragraph 44 states that Mt. Hawley validly and
"Insureds"
timely denied any obligation to defend or indemnify Plaintiff's (as defined in the
complaint) in connection with the underlying Polsinelli action.
45. States that the allegations in paragraph 45 are legal conclusions to which no
admission or denial is required, but to the extent a response is required, denies the allegations in
paragraph 45, and further avers that the alleged demand letters speak for themselves and are the
best statements of their contents.
46. In response to the allegations in paragraph 46, states that Mt. Hawley validly and
timely denied any obligation to reimburse Plaintiff for defense costs it alleged expended in
connection with the underlying Polsinelli action.
47. In response to paragraph 47, incorporates and re-alleges paragraphs 1 through 46
above as if fully set forth herein.
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48. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 48.
49. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 49.
50. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 50.
51. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 51.
52. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 52.
53. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 53.
54. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 54.
55. In response to paragraph 55, incorporates and re-alleges paragraphs 1 through 54
above as if fully set forth herein.
56. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 56.
57. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 57.
58. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 58.
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59. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 59.
60. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 60.
61. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 61.
62. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 62.
63. In response to paragraph 63, incorporates and re-alleges paragraphs 1 through 62
above as if fully set forth herein.
64. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 64.
65. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 65.
66. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 66.
67. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 67.
68. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 68.
69. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 69.
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70. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 70.
71. In response to paragraph 71, incorporates and re-alleges paragraphs 1 through 70
above as if fully set forth herein.
72. Denies the allegations in paragraph 72.
73. Denies the allegations in paragraph 73.
74. Denies the allegations in paragraph 74.
75. Denies the allegations in paragraph 75.
76. Denies the allegations in paragraph 76.
77. Denies the allegations in paragraph 77.
78. Denies the allegations in paragraph 78.
79. In response to paragraph 79, incorporates and re-alleges paragraphs 1 through 78
above if fully set forth herein.
80. Denies the allegations in paragraph 80.
81. Denies the allegations in paragraph 81.
82. Denies the allegations in paragraph 82.
83. Denies the allegations in paragraph 83.
84. In response to paragraph 84, incorporates and re-alleges paragraphs 1 through 83
above as if fully set forth herein.
85. Denies the allegations in paragraph 85.
86. Denies the allegations in paragraph 86.
87. Denies the allegations in paragraph 87.
88. Denies the allegations in paragraph 88.
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89. Denies the allegations in paragraph 89.
90. Denies the allegations in paragraph 90.
91. Denies the allegations in paragraph 91.
92. In response to paragraph 92, incorporates and re-alleges paragraphs 1 through 91
above as iffully set forth herein.
93. Denies the allegations in paragraph 93.
94. Denies the allegations in paragraph 94.
95. Denies the allegations in paragraph 95.
96. Denies the allegations in paragraph 96.
97. In response to paragraph 97, incorporates and re-alleges paragraphs 1 through 96
above as if fully set forth herein.
98. Denies the allegations in paragraph 98.
99. Denies the allegations in paragraph 99.
100. Denies the allegations in paragraph 100.
101. Denies the allegations in paragraph 101.
102. Denies the allegations in paragraph 102.
103. Denies the allegations in paragraph 103.
104. Denies the allegations in paragraph 104.
105. In response to paragraph 105, incorporates and re-alleges paragraphs 1 through 104
above as if fully set forth herein.
106. Denies the allegations in paragraph 106.
107. Denies the allegations in paragraph 107.
108. Denies the allegations in paragraph 108.
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109. Denies the allegations in paragraph 109.
110. In response to paragraph 110, incorporates and re-alleges paragraphs 1 through 109
above as if fully set forth herein.
111. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 111.
112. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 112.
113. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 113.
114. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 114.
115. Denies information or knowledge sufficient to admit or deny the allegations in
paragraph 115.
116. In response to paragraph 116, incorporates and re-alleges paragraphs 1 through 115
above as if fully set forth herein.
117. Denies the allegations in paragraph 117.
118. Denies the allegations in paragraph 118.
119. Denies the allegations in paragraph 119.
120. Denies the allegations in paragraph 120.
121. Denies the allegations in paragraph 121.
122. In response to paragraph 122, incorporates and re-alleges paragraphs 1 through 121
above as if fully set forth herein.
123. Denies the allegations in paragraph 123.
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124. Denies the allegations in paragraph 124.
125. Denies the allegations in paragraph 125.
126. Denies any allegation as to Mt. Hawley that may be contained in the complaint's
"Wherefore"
clause.
FIRST AFFIRMATIVE DEFENSE
The complaint fails to state a cause of action upon which relief can be granted.
SECOND AFFI_RMATIVE DEFENSE
Standing.
THIRD AFFIRMATIVE DEFENSE
Prematurity.
FOURTH AFFIRMATIVE DEFENSE
If any plaintiff is found to qualify as an insured under the Mt. Hawley policies alleged in
the complaint, any such coverage is excess to coverage under other policies under which such
plaintiff is insured, whether such other insurance is collectible or not.
FIFTH AFFIRMATIVE DEFENSE
If any plaintiff is found entitled to coverage under the Mt. Hawley policies alleged in the
complaint, any such coverage is reduced by coverage under other policies under which plaintiff is
insured, whether such other insurance is collectible or not.
CROSS-CLAIM
1. Mt. Hawley issued a Commercial General Liability Policy (No. MGL0183977) to
JKT Construction Inc. dba: Corcon ("Corcon") for the period April 1, 2016 to April 1, 2017.
2. Pursuant to and subject to all of the terms and conditions of the Mt. Hawley policy,
Mt. Hawley is defending and indemnifying Corcon in the underlying Polsinelli action.
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3. At all relevant times, a contract was in effect between Corcon and I.M.P. Plumbing
& Heating Corp. ("I.M.P.") that required I.M.P. to procure additional insured coverage for Corcon
under a commercial general liability (CGL) policy in connection with the project alleged in the
underlying Polsinelli complaint.
4. Defendant Arch Specialty Insurance Company ("Arch") issued a CGL policy to
I.M.P. in effect on the date of the accident alleged in Polsinelli.
5. Corcon is an additional insured under the Arch policy, and is entitled to defense
and indemnification under the Arch policy in connection with Polsinelli.
6. Corcon's coverage under the Arch policy is primary and non-contributory, and is
primary to Corcon's coverage under the Mt. Hawley policy, which coverage is excess to the Arch
policy.
7. Arch has the sole duty to defend Corcon in Polsinelli.
8. Arch's duty to indemnify Corcon in Polsinelli is primary to any duty to indemnify
that Mt. Hawley may have.
9. Mt. Hawley is entitled to a declaration that Arch must defend and indemnify Corcon
in Polsinelli on a primary and non-contributory basis.
10. Mt. Hawley is entitled to judgment against Arch for all amounts incurred by
Mt. Hawley for Corcon's defense in Polsinelli.
plaintiffs'
WHEREFORE, Mt. Hawley demands judgment: (1) dismissing complaint as
against Mt. Hawley in its entirety with prejudice; (2) declaring that Arch must defend and
indemnify Corcon in Polsinelli on a primary and non-contributory basis; (3) against Arch for all
amounts incurred by Mt. Hawley for Corcon's defense in Polsinelli; and (4) granting such other
and further relief as the Court finds just and appropriate.
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Dated: April 14, 2020 DELAHUNT LAW PLLC
By:
Timg(tify E. Delah t
Jocelyn M. Seitter
295 Main Street
Suite 836
Buffalo, New York 14203
Tel.: (716) 878-9178
Attorneys for defendant Mt. Hawley Insurance
Company
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AFFIRMATION OF SERVICE
I, Timothy E. Delahunt, hereby certify pursuant to C.P.L.R. section 2106, that on
April 14, 2020, I caused the following to be served with the foregoing Mt. Hawley Insurance
Company's Answer and Cross-Claim by first-class U.S. mail:
Christopher T. Bradley, Esq.
Guy P. Dauerty, Esq.
Marshall Conway Bradley Gollub & Weissman, P.C.
45 Broadway, Suite 740
New York, New York 10006
Dated: April 14, 2020
Timotl(E. Delahun
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Preview
FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 NEW YORK STATE: SUPREME COURT NEW YORK COUNTY ========--=======----=========---====== SOULCYCLE INC., RIVERSIDE CENTER PARCEL 2 BIT ASSOCIATES LLC, THE DERMOT COMPANY LP, and PHILADELPHIA INDEMNITY INSURANCE Index No.: 651606/2020 COMPANY, individually and as subrogee of SOULCYCLE INC., RIVERSIDE CENTER PARCEL 2 BIT ASSOCIATES LLC, and THE DERMOT ANSWER AND COMPANY LP, CROSS-CLAIM Plaintiffs, v. ARCH SPECIALTY INSURANCE CO. and MT. HAWLEY INSURANCE COMPANY, Defendants. _____________________ _ ____________ Defendant Mt. Hawley Insurance Company ("Mt. Hawley"), by its attorneys, Delahunt plaintiffs' Law PLLC, for itsAnswer to Complaint: 1. Denies the allegations in paragraph 1 with respect to any and allallegations directed to Mt. Hawley, and otherwise denies information or knowledge sufficient to admit or deny the remaining allegations in paragraph 1. 2. States that paragraph 2 is a narrative paragraph that does not contain any allegations that require admission or denial, and otherwise denies any and all allegations directed to Mt. Hawley. 3. States that paragraph 3 is a narrative paragraph that does not contain any allegations that require admission or denial, and otherwise denies any and all allegations therein. 4. States that paragraph 4 is a narrative paragraph that does not contain any allegations that require admission or denial, and otherwise denies any and all allegations therein. 1 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 5. States that paragraph 5 is a narrative paragraph that does not contain any allegations that require admission or denial, and otherwise denies any and all allegations directed to Mt. Hawley. 6. States that paragraph 6 is a narrative paragraph that does not contain any allegations that require admission or denial, and otherwise denies any and all allegations therein. 7. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 7. 8. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 8. 9. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 9. 10. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 10. 11. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 11. 12. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 12. 13. Admits the allegations in paragraph 13. 14. Admits the allegations in paragraph 14. 15. Admits the allegations in paragraph 15, and further states that Mt. Hawley is authorized to issue insurance policies in the State of New York as an excess and surplus lines insurer. 2 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 16. States that the allegations in paragraph 16 are legal conclusions to which no admission or denial is required. 17. States that the allegations in paragraph 17 are legal conclusions to which no admission or denial is required. 18. States that the allegations in paragraph 18 are legal conclusions to which no admission or denial is required. 19. States that the allegations in paragraph 19 are legal conclusions to which no admission or denial is required. 20. States that the allegations in paragraph 20 are legal conclusions to which no admission or denial is required. 21. States that the allegations in paragraph 21 are legal conclusions to which no admission or denial is required. 22. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 22, and further avers that the alleged policy speaks for itself and is the best statement of itscontents. 23. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 23, and further avers that the alleged policy speaks for itself and is the best statement of itscontents. 24. In response to the allegations in paragraph 24, states that Mt. Hawley issued a Commercial Geñêral Liability Policy (No. MGL0183977) to JKT Construction Inc. dba: Corcon for the period April 1, 2016 to April 1, 2017, and otherwise avers that the policy speaks for itself and is the best statement of itscontents. 3 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 25. In response to the allegations in paragraph 25, states that Mt. Hawley issued an Excess Liability Policy (No. MXL0423121) to JKT Construction Inc. dba: Corcon for the period April 1, 2016 to April 1, 2017, and otherwise avers that the policy speaks for itself and is the best statement of its contents. 26. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 26, and further avers that the alleged contract speaks for itself and is the best statement of itscontents. 27. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 27, otherwise states that the allegations in paragraph 27 are legal conclusions to which no admission or denial is required, and further avers that the alleged contract speaks for itself and is the best statement of itscontents. 28. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 28, and otherwise avers that the alleged contract speaks for itself and is the best statement of itscontents. 29. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 29, and otherwise avers that the alleged contract speaks for itself and is the best statement of itscontents. 30. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 30, and otherwise avers that the alleged contract speaks for itself and is the best statement of itscontents. 31. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 31, and otherwise avers that the alleged contract speaks for itself and is the best statement of itscontents. 4 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 32. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 32, otherwise states that the allegations in paragraph 32 are legal conclusions to which no admission or denial is required, and further avers that the alleged contract speaks for itself and is the best statement of itscontents. 33. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 33. 34. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 34. 35. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 35. 36. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 36. 37. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 37. 38. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 38. 39. States that the allegations in paragraph 39 are legal conclusions to which no admission or denial is required, but to the extent a response is required, denies the allegations in paragraph 39, and further avers that the alleged tender letters speak for themselves and are the best statements of their contents. 40. States that the allegations in paragraph 40 are legal conclusions to which no admission or denial is required, but to the extent a response is required, denies the allegations in 5 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 paragraph 40, and further avers that the alleged tender letters speak for themselves and are the best statements of their contents. 41. In response to the allegations in paragraph 41, states that Mt. Hawley validly and "Insureds" timely denied any obligation to defend or indemnify the Plaintiff s (as defined in the complaint) in connection with the underlying Polsinelli action. 42. In response to the allegations in paragraph 42, states that Mt. Hawley validly and "Insureds" timely denied any obligation to defend or indemnify Plaintiff's (as defmed in the complaint) in connection with the underlying Polsinelli action. 43. In response to the allegations in paragraph 43, states that Mt. Hawley validly and "Insureds" timely denied any obligation to defend or indemnify Plaintiff's (as defined in the complaint) in connection with the underlying Polsinelli action. 44. In response to the allegations in paragraph 44 states that Mt. Hawley validly and "Insureds" timely denied any obligation to defend or indemnify Plaintiff's (as defined in the complaint) in connection with the underlying Polsinelli action. 45. States that the allegations in paragraph 45 are legal conclusions to which no admission or denial is required, but to the extent a response is required, denies the allegations in paragraph 45, and further avers that the alleged demand letters speak for themselves and are the best statements of their contents. 46. In response to the allegations in paragraph 46, states that Mt. Hawley validly and timely denied any obligation to reimburse Plaintiff for defense costs it alleged expended in connection with the underlying Polsinelli action. 47. In response to paragraph 47, incorporates and re-alleges paragraphs 1 through 46 above as if fully set forth herein. 6 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 48. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 48. 49. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 49. 50. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 50. 51. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 51. 52. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 52. 53. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 53. 54. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 54. 55. In response to paragraph 55, incorporates and re-alleges paragraphs 1 through 54 above as if fully set forth herein. 56. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 56. 57. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 57. 58. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 58. 7 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 59. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 59. 60. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 60. 61. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 61. 62. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 62. 63. In response to paragraph 63, incorporates and re-alleges paragraphs 1 through 62 above as if fully set forth herein. 64. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 64. 65. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 65. 66. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 66. 67. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 67. 68. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 68. 69. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 69. 8 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 70. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 70. 71. In response to paragraph 71, incorporates and re-alleges paragraphs 1 through 70 above as if fully set forth herein. 72. Denies the allegations in paragraph 72. 73. Denies the allegations in paragraph 73. 74. Denies the allegations in paragraph 74. 75. Denies the allegations in paragraph 75. 76. Denies the allegations in paragraph 76. 77. Denies the allegations in paragraph 77. 78. Denies the allegations in paragraph 78. 79. In response to paragraph 79, incorporates and re-alleges paragraphs 1 through 78 above if fully set forth herein. 80. Denies the allegations in paragraph 80. 81. Denies the allegations in paragraph 81. 82. Denies the allegations in paragraph 82. 83. Denies the allegations in paragraph 83. 84. In response to paragraph 84, incorporates and re-alleges paragraphs 1 through 83 above as if fully set forth herein. 85. Denies the allegations in paragraph 85. 86. Denies the allegations in paragraph 86. 87. Denies the allegations in paragraph 87. 88. Denies the allegations in paragraph 88. 9 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 89. Denies the allegations in paragraph 89. 90. Denies the allegations in paragraph 90. 91. Denies the allegations in paragraph 91. 92. In response to paragraph 92, incorporates and re-alleges paragraphs 1 through 91 above as iffully set forth herein. 93. Denies the allegations in paragraph 93. 94. Denies the allegations in paragraph 94. 95. Denies the allegations in paragraph 95. 96. Denies the allegations in paragraph 96. 97. In response to paragraph 97, incorporates and re-alleges paragraphs 1 through 96 above as if fully set forth herein. 98. Denies the allegations in paragraph 98. 99. Denies the allegations in paragraph 99. 100. Denies the allegations in paragraph 100. 101. Denies the allegations in paragraph 101. 102. Denies the allegations in paragraph 102. 103. Denies the allegations in paragraph 103. 104. Denies the allegations in paragraph 104. 105. In response to paragraph 105, incorporates and re-alleges paragraphs 1 through 104 above as if fully set forth herein. 106. Denies the allegations in paragraph 106. 107. Denies the allegations in paragraph 107. 108. Denies the allegations in paragraph 108. 10 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 109. Denies the allegations in paragraph 109. 110. In response to paragraph 110, incorporates and re-alleges paragraphs 1 through 109 above as if fully set forth herein. 111. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 111. 112. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 112. 113. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 113. 114. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 114. 115. Denies information or knowledge sufficient to admit or deny the allegations in paragraph 115. 116. In response to paragraph 116, incorporates and re-alleges paragraphs 1 through 115 above as if fully set forth herein. 117. Denies the allegations in paragraph 117. 118. Denies the allegations in paragraph 118. 119. Denies the allegations in paragraph 119. 120. Denies the allegations in paragraph 120. 121. Denies the allegations in paragraph 121. 122. In response to paragraph 122, incorporates and re-alleges paragraphs 1 through 121 above as if fully set forth herein. 123. Denies the allegations in paragraph 123. 11 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 124. Denies the allegations in paragraph 124. 125. Denies the allegations in paragraph 125. 126. Denies any allegation as to Mt. Hawley that may be contained in the complaint's "Wherefore" clause. FIRST AFFIRMATIVE DEFENSE The complaint fails to state a cause of action upon which relief can be granted. SECOND AFFI_RMATIVE DEFENSE Standing. THIRD AFFIRMATIVE DEFENSE Prematurity. FOURTH AFFIRMATIVE DEFENSE If any plaintiff is found to qualify as an insured under the Mt. Hawley policies alleged in the complaint, any such coverage is excess to coverage under other policies under which such plaintiff is insured, whether such other insurance is collectible or not. FIFTH AFFIRMATIVE DEFENSE If any plaintiff is found entitled to coverage under the Mt. Hawley policies alleged in the complaint, any such coverage is reduced by coverage under other policies under which plaintiff is insured, whether such other insurance is collectible or not. CROSS-CLAIM 1. Mt. Hawley issued a Commercial General Liability Policy (No. MGL0183977) to JKT Construction Inc. dba: Corcon ("Corcon") for the period April 1, 2016 to April 1, 2017. 2. Pursuant to and subject to all of the terms and conditions of the Mt. Hawley policy, Mt. Hawley is defending and indemnifying Corcon in the underlying Polsinelli action. 12 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 3. At all relevant times, a contract was in effect between Corcon and I.M.P. Plumbing & Heating Corp. ("I.M.P.") that required I.M.P. to procure additional insured coverage for Corcon under a commercial general liability (CGL) policy in connection with the project alleged in the underlying Polsinelli complaint. 4. Defendant Arch Specialty Insurance Company ("Arch") issued a CGL policy to I.M.P. in effect on the date of the accident alleged in Polsinelli. 5. Corcon is an additional insured under the Arch policy, and is entitled to defense and indemnification under the Arch policy in connection with Polsinelli. 6. Corcon's coverage under the Arch policy is primary and non-contributory, and is primary to Corcon's coverage under the Mt. Hawley policy, which coverage is excess to the Arch policy. 7. Arch has the sole duty to defend Corcon in Polsinelli. 8. Arch's duty to indemnify Corcon in Polsinelli is primary to any duty to indemnify that Mt. Hawley may have. 9. Mt. Hawley is entitled to a declaration that Arch must defend and indemnify Corcon in Polsinelli on a primary and non-contributory basis. 10. Mt. Hawley is entitled to judgment against Arch for all amounts incurred by Mt. Hawley for Corcon's defense in Polsinelli. plaintiffs' WHEREFORE, Mt. Hawley demands judgment: (1) dismissing complaint as against Mt. Hawley in its entirety with prejudice; (2) declaring that Arch must defend and indemnify Corcon in Polsinelli on a primary and non-contributory basis; (3) against Arch for all amounts incurred by Mt. Hawley for Corcon's defense in Polsinelli; and (4) granting such other and further relief as the Court finds just and appropriate. 13 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 Dated: April 14, 2020 DELAHUNT LAW PLLC By: Timg(tify E. Delah t Jocelyn M. Seitter 295 Main Street Suite 836 Buffalo, New York 14203 Tel.: (716) 878-9178 Attorneys for defendant Mt. Hawley Insurance Company 14 of 15 FILED: NEW YORK COUNTY CLERK 06/26/2020 10:20 AM INDEX NO. 651606/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/26/2020 AFFIRMATION OF SERVICE I, Timothy E. Delahunt, hereby certify pursuant to C.P.L.R. section 2106, that on April 14, 2020, I caused the following to be served with the foregoing Mt. Hawley Insurance Company's Answer and Cross-Claim by first-class U.S. mail: Christopher T. Bradley, Esq. Guy P. Dauerty, Esq. Marshall Conway Bradley Gollub & Weissman, P.C. 45 Broadway, Suite 740 New York, New York 10006 Dated: April 14, 2020 Timotl(E. Delahun 15 of 15