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FILED: NEW YORK COUNTY CLERK 10/23/2019 12:45 PM INDEX NO. 654093/2019
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/23/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ARCH INSURANCE COMPANY for itself and a/s/o,
Prismatic Development Corp. and URS-LIRO, a Joint
Venture,
Plaintiff, ANSWER AND
COUNTERCLAIM
VS.
Index No.: 654093/2019
SELECTIVE INSURANCE COMPANY OF AMERICA,
SOLAR ELECTRIC SYSTEMS INC., JOHN DOES 1-10,
AND ABC CORPORATIONS 1-10,
Defendants,
The defendant, SELECTIVE INSURANCE COMPANY OF AMERICA,
hereinafter referred to as this defendant, by its attorneys, HURWITZ & FINE, P.C., as and for an
answer to the complaint of the plaintiff, ARCH INSURANCE COMPANY for itself and a/s/o,
Prismatic Development Corp. and URS-LIRO, a Joint Venture, herein states the following:
1. Denies each and every allegation contained in paragraphs 2, 4, 8, 9, 10,
31, 51, 56, 59, 60, 62, 65, 66, 67, 68, 69, 74, 80, 85, 86, 87, 88, 89, 90, 91, 92, 93 and 94.
2. Denies having knowledge and information sufficient to form a belief as to
the allegations contained in paragraphs 1, 3, 5, 6, 7, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,
25, 30, 32, 33, 34, 35, 36, 37, 40, 45, 46, 47, 48, 49, 50, 53, 54, 55, 57, 58, 61, 64, 70, 71, 72, 73,
75, 76, 77, 78, 79, 81, 82, 83 and 84.
3. As and for an answer to the allegations in paragraph 11, admits that
Selective is an insurance company authorized to issue policies of insurance in the State of
New York.
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4. As and for an answer to the allegations in paragraphs 12 and 63, admits
that Selective issue a policy or policies of insurance to Solar, which policy or policies are
included in this action by reference.
5. As and for an answer to the allegations in paragraphs 26, 27, 28 and 29,
admits that Selective issued a commercial package policy no S1879372, which policy is
incorporated into this answer by reference as if fully set forth herein, but otherwise denies having
knowledge or information sufficient to form a belief as to the remaining allegations contained
therein.
6. As and for an answer to the allegations in paragraphs 38 and 39, admits
that Selective received the letters attached as Exhibits "C" and "D" to the plaintiff's complaint,
which letters speak for themselves.
7. As and for an answer to the allegations in paragraphs 40, 41 and 42,
admits that Selective sent the letter attached as Exhibit "E" to the plaintiffs complaint, which
letter speaks for itself.
8. As and for an answer to the allegations in paragraphs 43 and 44, admits
that with the full approval, authority, endorsement and consent of counsel selected by the
plaintiff Arch and upon information and belief, with the full approval, authority, endorsement
and consent of Arch, the third-party action against Solar was discontinued.
9. As and for an answer to the allegations in paragraph 52, admits that the
third-party action was recommenced in 2016.
AS AND FOR AN ANSWER
TO THE FIRST CAUSE OF ACTION:
10. As and for an answer to paragraph 95, this defendant repeats and realleges
its answers to paragraphs 1 through 94 with the same force and effect as if fully set forth herein.
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11. Denies each and every allegation contained in paragraphs 96, 97, 98 and
99.
AS AND FOR AN ANSWER
TO THE SECOND CAUSE OF ACTION:
12. As and for an answer to paragraph 100, this defendant repeats and
realleges its answers to paragraphs 1 through 99 with the same force and effect as if fully set
forth herein.
13. Denies each and every allegation contained in paragraphs 101, 102, 103,
104 and 105.
AS AND FOR AN ANSWER
TO THE THIRD CAUSE OF ACTION:
14. As and for an answer to paragraph 106, this defendant repeats and
realleges its answers to paragraphs 1 through 105 with the same force and effect as if fully set
forth herein.
15. Denies each and every allegation contained in paragraphs 110 and 112.
16. Denies having knowledge and information sufficient to form a belief as to
the allegations contained in paragraphs 107, 108, 109 and 111.
AS AND FOR AN ANSWER
TO THE FOURTH CAUSE OF ACTION:
17. As and for an answer to paragraph 113, this defendant repeats and
realleges its answers to paragraphs 1 through 112 with the same force and effect as if fully set
forth herein.
18. Denies each and every allegation contained in paragraphs 114, 115 and
116.
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AS AND FOR AN ANSWER
TO THE FIFTH CAUSE OF ACTION:
19. As and for an answer to paragraph 117, this defendant repeats and
realleges its answers to paragraphs 1 through 116 with the same force and effect as if fully set
forth herein.
20. Denies each and every allegation contained in paragraph 119.
21. Denies having knowledge and information sufficient to foiina belief as to
the allegations contained in paragraph 118.
AS AND FOR AN ANSWER
TO THE SIXTH CAUSE OF ACTION:
22. As and for an answer to paragraph 120, this defendant repeats and
realleges its answers to paragraphs 1 through 119 with the same force and effect as if fully set
forth herein.
23. Denies each and every allegation contained in paragraphs 123, 124, 125,
127, 128 and 129.
24. Denies having knowledge and information sufficient to form a belief as to
the allegations contained in paragraphs 121, 122 and 126.
25. Denies each and every other allegation in all causes of action not
heretofore controverted.
AS AND FOR A FIRST, SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, THIS DEFENDANT ALLEGES,
UPON INFORMATION AND BELIEF:
26. Plaintiff does not have standing to maintain this action.
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AS AND FOR A SECOND, SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, THIS DEFENDANT ALLEGES,
UPON INFORMATION AND BELIEF:
27. Plaintiff fails to state a cause of action for either declaratory relief, breach
of contract or bad faith.
AS AND FOR A THIRD, SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, THIS DEFENDANT ALLEGES,
UPON INFORMATION AND BELIEF:
28. Arch, on behalf of itself and Prismatic and URS-LIRO, specifically agreed
to the discontinuance of the third party action against Solar.
AS AND FOR A FOURTH, SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, THIS DEFENDANT ALLEGES,
UPON INFORMATION AND BELIEF:
29. There is another action pending under which the claims of contractual
indemnity will be resolved, that is, the third party action commenced by Prismatic and URS-
LIRO against Solar.
AS AND FOR A FIFTH, SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, AND BY WAY OF COUNTERCLAIM
AGAINST THE PLAINTIFF, ARCH INSURANCE COMPANY
FOR ITSELF AND A/S/0, PRISMATIC DEVELOPMENT CORP,
AND URS-LIRO, A JOINT VENTURE, THIS DEFENDANT ALLEGES,
UPON INFORMATION AND BELIEF:
30. The Arch policy identified in paragraph 32 of the Plaintiff's complaint
provides primary insurance coverage to Prismatic and URS-LIRO for claims arising out of
bodily injury caused by acts or omissions of Prismatic and URS-LIRO.
31. The Arch policy's coverage for its insureds provides coverage for
judgments against Prismatic and URS-LIRO, obligations for which Arch seeks to avoid by this
action.
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32. Upon information and belief, this action is commenced for the purpose of
avoiding the coverage obligations owed by Arch to Prismatic and URS-LIRO, and accordingly.
Arch is in conflict with the interests of its insured and proceeds with unclean hands.
WHEREFORE, the defendant, SELECTIVE INSURANCE COMPANY OF
AMERICA, demands judgment as follows:
1. Dismissing the complaint herein, or
2. Declare that Arch provides primary coverage to Prismatic and URS-LIRO,
before the triggering of any excess coverage under any Selective policy; and
3. Such other and further relief as to this court may seem just, proper and
equitable, together with the costs and disbursements of this action.
DATED: Buffalo, New York
October 22, 2019
HURWITZ & FINE
By
ban D. Kohane, Esq.
Attorneysfor Defendant, SELECTIVE
INSURANCE COMPANY OF AMERICA
1300 Liberty Building
424 Main Street
Buffalo, New York 14202
(716) 849-8900
ddk@hurwitzfine.com
TO: CONNELL FOLEY LLP
William D. Deveau, Esq.
Attorneys for Plaintiffs
888 Seventh Avenue, 9th Floor
New York, New York 10106
(212) 262-2390
ATTORNEYS FOR DEFENDANT,
SOLAR ELECTRIC SYSTEMS INC
AS THEY MAY APPEAR
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FILED: NEW YORK COUNTY CLERK 10/23/2019 12:45 PM INDEX NO. 654093/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/23/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ARCH INSURANCE COMPANY for itself and a/s/o, Prismatic Development Corp. and URS-LIRO, a Joint Venture, Plaintiff, ANSWER AND COUNTERCLAIM VS. Index No.: 654093/2019 SELECTIVE INSURANCE COMPANY OF AMERICA, SOLAR ELECTRIC SYSTEMS INC., JOHN DOES 1-10, AND ABC CORPORATIONS 1-10, Defendants, The defendant, SELECTIVE INSURANCE COMPANY OF AMERICA, hereinafter referred to as this defendant, by its attorneys, HURWITZ & FINE, P.C., as and for an answer to the complaint of the plaintiff, ARCH INSURANCE COMPANY for itself and a/s/o, Prismatic Development Corp. and URS-LIRO, a Joint Venture, herein states the following: 1. Denies each and every allegation contained in paragraphs 2, 4, 8, 9, 10, 31, 51, 56, 59, 60, 62, 65, 66, 67, 68, 69, 74, 80, 85, 86, 87, 88, 89, 90, 91, 92, 93 and 94. 2. Denies having knowledge and information sufficient to form a belief as to the allegations contained in paragraphs 1, 3, 5, 6, 7, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 30, 32, 33, 34, 35, 36, 37, 40, 45, 46, 47, 48, 49, 50, 53, 54, 55, 57, 58, 61, 64, 70, 71, 72, 73, 75, 76, 77, 78, 79, 81, 82, 83 and 84. 3. As and for an answer to the allegations in paragraph 11, admits that Selective is an insurance company authorized to issue policies of insurance in the State of New York. 1 1 of 6 FILED: NEW YORK COUNTY CLERK 10/23/2019 12:45 PM INDEX NO. 654093/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/23/2019 4. As and for an answer to the allegations in paragraphs 12 and 63, admits that Selective issue a policy or policies of insurance to Solar, which policy or policies are included in this action by reference. 5. As and for an answer to the allegations in paragraphs 26, 27, 28 and 29, admits that Selective issued a commercial package policy no S1879372, which policy is incorporated into this answer by reference as if fully set forth herein, but otherwise denies having knowledge or information sufficient to form a belief as to the remaining allegations contained therein. 6. As and for an answer to the allegations in paragraphs 38 and 39, admits that Selective received the letters attached as Exhibits "C" and "D" to the plaintiff's complaint, which letters speak for themselves. 7. As and for an answer to the allegations in paragraphs 40, 41 and 42, admits that Selective sent the letter attached as Exhibit "E" to the plaintiffs complaint, which letter speaks for itself. 8. As and for an answer to the allegations in paragraphs 43 and 44, admits that with the full approval, authority, endorsement and consent of counsel selected by the plaintiff Arch and upon information and belief, with the full approval, authority, endorsement and consent of Arch, the third-party action against Solar was discontinued. 9. As and for an answer to the allegations in paragraph 52, admits that the third-party action was recommenced in 2016. AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION: 10. As and for an answer to paragraph 95, this defendant repeats and realleges its answers to paragraphs 1 through 94 with the same force and effect as if fully set forth herein. 2 2 of 6 FILED: NEW YORK COUNTY CLERK 10/23/2019 12:45 PM INDEX NO. 654093/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/23/2019 11. Denies each and every allegation contained in paragraphs 96, 97, 98 and 99. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION: 12. As and for an answer to paragraph 100, this defendant repeats and realleges its answers to paragraphs 1 through 99 with the same force and effect as if fully set forth herein. 13. Denies each and every allegation contained in paragraphs 101, 102, 103, 104 and 105. AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION: 14. As and for an answer to paragraph 106, this defendant repeats and realleges its answers to paragraphs 1 through 105 with the same force and effect as if fully set forth herein. 15. Denies each and every allegation contained in paragraphs 110 and 112. 16. Denies having knowledge and information sufficient to form a belief as to the allegations contained in paragraphs 107, 108, 109 and 111. AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION: 17. As and for an answer to paragraph 113, this defendant repeats and realleges its answers to paragraphs 1 through 112 with the same force and effect as if fully set forth herein. 18. Denies each and every allegation contained in paragraphs 114, 115 and 116. 3 3 of 6 FILED: NEW YORK COUNTY CLERK 10/23/2019 12:45 PM INDEX NO. 654093/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/23/2019 AS AND FOR AN ANSWER TO THE FIFTH CAUSE OF ACTION: 19. As and for an answer to paragraph 117, this defendant repeats and realleges its answers to paragraphs 1 through 116 with the same force and effect as if fully set forth herein. 20. Denies each and every allegation contained in paragraph 119. 21. Denies having knowledge and information sufficient to foiina belief as to the allegations contained in paragraph 118. AS AND FOR AN ANSWER TO THE SIXTH CAUSE OF ACTION: 22. As and for an answer to paragraph 120, this defendant repeats and realleges its answers to paragraphs 1 through 119 with the same force and effect as if fully set forth herein. 23. Denies each and every allegation contained in paragraphs 123, 124, 125, 127, 128 and 129. 24. Denies having knowledge and information sufficient to form a belief as to the allegations contained in paragraphs 121, 122 and 126. 25. Denies each and every other allegation in all causes of action not heretofore controverted. AS AND FOR A FIRST, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THIS DEFENDANT ALLEGES, UPON INFORMATION AND BELIEF: 26. Plaintiff does not have standing to maintain this action. 4 4 of 6 FILED: NEW YORK COUNTY CLERK 10/23/2019 12:45 PM INDEX NO. 654093/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/23/2019 AS AND FOR A SECOND, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THIS DEFENDANT ALLEGES, UPON INFORMATION AND BELIEF: 27. Plaintiff fails to state a cause of action for either declaratory relief, breach of contract or bad faith. AS AND FOR A THIRD, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THIS DEFENDANT ALLEGES, UPON INFORMATION AND BELIEF: 28. Arch, on behalf of itself and Prismatic and URS-LIRO, specifically agreed to the discontinuance of the third party action against Solar. AS AND FOR A FOURTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THIS DEFENDANT ALLEGES, UPON INFORMATION AND BELIEF: 29. There is another action pending under which the claims of contractual indemnity will be resolved, that is, the third party action commenced by Prismatic and URS- LIRO against Solar. AS AND FOR A FIFTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, AND BY WAY OF COUNTERCLAIM AGAINST THE PLAINTIFF, ARCH INSURANCE COMPANY FOR ITSELF AND A/S/0, PRISMATIC DEVELOPMENT CORP, AND URS-LIRO, A JOINT VENTURE, THIS DEFENDANT ALLEGES, UPON INFORMATION AND BELIEF: 30. The Arch policy identified in paragraph 32 of the Plaintiff's complaint provides primary insurance coverage to Prismatic and URS-LIRO for claims arising out of bodily injury caused by acts or omissions of Prismatic and URS-LIRO. 31. The Arch policy's coverage for its insureds provides coverage for judgments against Prismatic and URS-LIRO, obligations for which Arch seeks to avoid by this action. 5 5 of 6 FILED: NEW YORK COUNTY CLERK 10/23/2019 12:45 PM INDEX NO. 654093/2019 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/23/2019 32. Upon information and belief, this action is commenced for the purpose of avoiding the coverage obligations owed by Arch to Prismatic and URS-LIRO, and accordingly. Arch is in conflict with the interests of its insured and proceeds with unclean hands. WHEREFORE, the defendant, SELECTIVE INSURANCE COMPANY OF AMERICA, demands judgment as follows: 1. Dismissing the complaint herein, or 2. Declare that Arch provides primary coverage to Prismatic and URS-LIRO, before the triggering of any excess coverage under any Selective policy; and 3. Such other and further relief as to this court may seem just, proper and equitable, together with the costs and disbursements of this action. DATED: Buffalo, New York October 22, 2019 HURWITZ & FINE By ban D. Kohane, Esq. Attorneysfor Defendant, SELECTIVE INSURANCE COMPANY OF AMERICA 1300 Liberty Building 424 Main Street Buffalo, New York 14202 (716) 849-8900 ddk@hurwitzfine.com TO: CONNELL FOLEY LLP William D. Deveau, Esq. Attorneys for Plaintiffs 888 Seventh Avenue, 9th Floor New York, New York 10106 (212) 262-2390 ATTORNEYS FOR DEFENDANT, SOLAR ELECTRIC SYSTEMS INC AS THEY MAY APPEAR 6 6 of 6