Preview
FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
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DURST PYRAMID LLC and HUNTER ROBERTS Index No.:
CONSTRUCTION GROUP, L.L.C.,
SUMMONS
Plaintiffs,
- against -
FRED GELLER ELECTRICAL, INC., HARLEYSVILLE
INSURANCE COMPANY OF NEW YORK, and
HARLEYSVILLE WORCESTER INSURANCE
COMPANY,
Defendants.
-----------_________________________________----------------------------X
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action, and
Plaintiffs'
to serve a copy of your Answer on the attorneys, CULLEN and DYKMAN LLP,
within twenty (20) days after the service of this summons exclusive of the day of service (or
within thirty (30) days after the service is complete ifthis summons is not personally delivered to
you within the State of New York); and in case of your failure to appear or answer, judgment
will be taken against you by default for the relief demanded in the Verified Complaint.
Dated: New York, New York
May 23, 2018
'
CULLEN and D LLP
By: - -
Scott M. Shapiro, Esq.
Attorneys for Plaintiffs
DURST PYRAMID LLC and
HUNTER ROBERTS
CONSTRUCTION GROUP, L.L.C
14°¹
44 Wall Street, 14 Floor
(212) 732-2000
File No.: 5448-31
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TO: Via N.Y.S. Department of Financial Services
HARLEYSVILLE INSURANCE COMPANY OF NEW YORK
Via N.Y.S. Devartment of Financial Services
HARLEYSVILLE WORCESTER INSURANCE COMPANY
Via Secretary of State
FRED GELLER ELECTRICAL, INC.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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DURST PYRAMID LLC and HUNTER ROBERTS Index No.:
CONSTRUCTION GROUP, L.L.C.,
Plaintiffs, VERIFIED COMPLAINT
- against -
FRED GELLER ELECTRICAL, INC., HARLEYSVILLE
INSURANCE COMPANY OF NEW YORK, and
HARLEYSVILLE WORCESTER INSURANCE
COMPANY,
Defendants.
------------------------------------------------------------------------X
Plaintiffs DURST PYRAMID LLC ("DURST") and HUNTER ROBERTS
ROBERTS"
CONSTRUCTION GROUP, L.L.C. ("HUNTER ROBERTS"), by their attorneys, CULLEN AND
DYKMAN LLP, as and for their Verified Complaint herein, allege, upon information and belief as
follows:
NATURE OF THE ACTION
1. DURST and HUNTER ROBERTS seek an Order declaring that:
a. Defendant FRED GELLER ELECTRICAL, INC. breached its
contractual agreement to DURST and HUNTER ROBERTS by
failing to procure the required and proper insurance coverage causing
DURST and HUNTER ROBERTS to sustain damages as a result of
that breach;
b. Defendants HARLEYSVILLE INSURANCE COMPANY OF NEW
YORK and HARLEYSVILLE WORCESTER INSURANCE
COMPANY are obligated to defend and indemnify DURST and
HUNTER ROBERTS for the claims asserted in the personal injury
action commenced by ROBERT ARTHUR MILLER in the Supreme
Court of the State of New York, New York County, Index Number
Action"
159575/2017/2015 ("the Underlying Miller Action");
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c. DURST and HUNTER ROBERTS are additional insureds under the
liability insurance policies issued by defendants HARLEYSVILLE
INSURANCE COMPANY OF NEW YORK and HARLEYSVILLE
WORCESTER INSURANCE COMPANY to defendant FRED
GELLER ELECTRICAL, INC.;
d. Defendants HARLEYSVILLE INSURANCE COMPANY OF
NEW YORK and HARLEYSVILLE WORCESTER INSURANCE
COMPANY are obligated to reimburse DURST and HUNTER
ROBERTS for alllegal fees and expenses they have incurred and
will incur in defending the Underlying Miller Action;
e. Any insurance policies issued to DURST and HUNTER
ROBERTS are excess over the liability insurance policies that
defendants HARLEYSVILLE INSURANCE COMPANY OF NEW
YORK and HARLEYSVILLE WORCESTER INSURANCE
COMPANY issued to defendant FRED GELLER ELECTRICAL,
INC., and will not contribute with those policies in connection with
the Underlying Miller Action;
f. DURST and HUNTER ROBERTS are entitled to an inquest on the
issue of damages they have incurred, including, but not limited to,
their past and future legal fees, disbursements, costs and expenses;
and,
g. For such other, further and different relief that this Court deems
just and proper.
THE PARTIES AND JURISDICTION
2. At all times hereinafter mentioned, DURST was and is a domestic limited
liability company duly organized and existing under and by virtue of the laws of the State of New
York and is authorized to do business in the State of New York.
3. At all times hereinafter mentioned, HUNTER ROBERTS was and is a foreign
limited liability company duly organized and existing under and by virtue of the laws of the State
of Delaware and is authorized to do business in the State of New York.
4. At all times hereinafter mentioned, FRED GELLER ELECTRICAL, INC.
("GELLER"), was and is a domestic business corporation duly licensed and authorized to
conduct business within the State of New York.
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5. At all times hereinafter mentioned, HARLEYSVILLE INSURANCE COMPANY
YORK"
OF NEW YORK ("HARLEYSVILLE OF NEW YORK"), was and is a domestic business
corporation duly licensed and authorized to conduct business within the State of New York.
6. At alltimes hereinafter mentioned, HARLEYSVILLE OF NEW YORK was and
is a foreign business corporation duly licensed and authorized to conduct business in the State of
New York.
7. At all times hereinafter mentioned, HARLEYSVILLE OF NEW YORK was and
is an insurance company licensed to do, and stilldoes, insurance business in the State of New York.
8. This Court has personal jurisdiction over HARLEYSVILLE OF NEW YORK
because, at allrelevant times hereafter mentioned, HARLEYSVILLE OF NEW YORK engaged in
the business of insurance in the State of New York.
9. At all times hereinafter mentioned, HARLEYSVLLE WORCESTER
WORCESTER"
INSURANCE COMPANY ("HARLEYSVILLE WORCESTER") was and is a domestic business
corporation duly licensed and authorized to conduct business within the State of New York.
10. At all times hereinafter mentioned, HARLEYSVILLE WORCESTER was and is a
foreign business corporation duly licensed and authorized to conduct business in the State of New
York.
11. At all times hereinafter mentioned, HARLEYSVILLE WORCESTER was and is
an insurance company licensed to do, and stilldoes, insurance business in the State of New York.
12. This Court has personal jurisdiction over HARLEYSVILLE WORCESTER
because, at all relevant times hereafter mentioned, HARLEYSVILLE WORCESTER engaged in
the business of insurance in the State of New York.
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THE UNDERLYlNG MILLER ACTION
13. The plaintiff in the Underlying Miller Action alleges that he sustained personal
injuries in an accident that occurred on January 15, 2016 at the Durst Pyramid Project at 625
57* Project"
West 57 Street in Manhattan ("the Project"). The plaintiff allegedly fell while performing work
at the Project and claims that the Project sitewas an unsafe workplace.
14. On February 19, 2018 the plaintiff in the Underlying Miller Action filed an
Amended Complaint naming GELLER as a defendant, alleging that inadequate lighting was a
cause of the accident and that GELLER was negligent.
15. The allegations in the Complaint and Amended Complaint in the Underlying
Miller Action are incorporated by reference herein, but without DURST and HUNTER
ROBERTS admitting the truth thereof.
16. Shortly after the Underlying Miller Action was commenced, DURST and
'
HUNTER ROBERTS appointed defense counsel to represent them, and this representation
continues up to the present time.
THE CONSTRUCTION AGREEMENT
17. Prior to January 15, 2016, HUNTER ROBERTS entered into a contract with
GELLER whereby GELLER agreed to perform electrical work and/or services, including the
Contract"
provision of temporary lighting, at the Project ("the HUNTER ROBERTS-GELLER Contract").
18. The HUNTER ROBERTS-GELLER Contract was in full force and effect on
January 15, 2016.
19. The HUNTER ROBERTS-GELLER Contract contains provisions whereby
GELLER agreed to procure and keep in full force and effect, primary and noncontributory
general liability insurance coverage naming DURST and HUNTER ROBERTS as additional
insureds.
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"Indemnity"
20. Further, the HUNTER ROBERTS-GELLER Contract included an
obligation that required GELLER to indemnify and hold DURST and HUNTER ROBERTS
harmless from and against any damages and claims for bodily injury arising out of or from the
performance of the work GELLER. the provision in the HUNTER '
by Specifically, indemnity
ROBERTS-GELLER Contract states:
ARTICLE 8 (Indemnification and Insurance)
8.1 To the extent permitted by law, and to the extend not caused in
whole or in part by an Indemnitee's own negligence, the Trade Contractor
shall indemnify, defend, save and hold harmless Hunter Roberts and the
Owner and their respective members, consultants, engineers, design
professionals, partners, parents, affiliates, agents, officers, directors,
shareholders and employees and anyone else acting for or on behalf of any
of them and any other required Indemnitee required by the Owner (herein
collectively called "Indemnitees") from and against all liability, damage,
loss, claims, demands, suits, obligations, prohibitions, fines, penalties and
actions of any nature whatsoever, including attorney's fees, which arise out
of or are connected with or are claimed to arise out of or be connected with
the performance of Work by Trade Contractor, or any act or omission of
the Trade Contractor, including, without limitation, any work previously
performed by, on behalf of or through Trade Contractor at the Site, whether
or not caused in part by any Indemnitee(s). As used in this Article 8, the
Contractor"
term Trade shall include its subcontractors of any tier,
suppliers, agents, officers, consultants, design professionals and employees.
Without limiting the generality of the foregoing, such defense and
indemnity include all liability, damages, loss, claims, demands and actions
on account of personal injury, death, property loss or economic loss to any
Indemnitees'
Indemnitee, any of employees, agents, contractors or
subcontractors, licensees or invitees, or other contractor or subcontractor,
their employees, agents, contractors or subcontractors, licensees or invitees,
or other contractor or subcontractor, their employees, agents,
subcontractors, licensees or invitees or to any other persons, whether based
upon, or claimed to be based upon, statutory (including, without limiting
workers'
the generality of the foregoing, compensation), contractual, tort or
other liability of any Indemnitee, contractor, subcontractor or any other
persons. In addition, the liability, damages, loss, claims, demands and
actions indemnified against shall include all liability, damage, loss, claims,
demands and actions for trademark, copyright or patent infringement, for
"intangible"
unfair competition or infringement of any other so-called
property rights which arise out of any failure of the Trade Contractor to
discharge itsduties.
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21. GELLER, as a contracting party, knew and was aware that DURST and
HUNTER ROBERTS were entitled to insurance coverage and had all rights concerning
additional insureds.
22. GELLER, pursuant to the HUNTER ROBERTS-GELLER Contract, agreed to
procure liability insurance policies naming DURST and HUNTER ROBERTS as additional
insureds with respect to bodily injury claims arising out of the work that GELLER was
performing at the Project.
INSURANCE COVERAGE PROCURED BY GELLER
A. The Harleysville Primary Policy
23. HARLEYSVILLE OF NEW YORK, in consideration for the premiums that
GELLER paid, issued primary general liability insurance to GELLER under policy number MPA
Policy"
063596R (the "HARLEYSVILLE New York Policy") for periods of coverage that included
January 15, 2016.
24. The HARLEYSVILLE New York Policy was in full force and effect on January
15, 2016.
"automatic"
25. The HARLEYSVILLE New York Policy provides additional
insured coverage for bodily injury claims to any person or organization that GELLER had
agreed, in writing, to include as an additional insured, as long as the potential liability is for
injuries caused, in whole or in part, by GELLER's acts or omissions in performing operations for
that person or organization.
26. The HARLEYSVILLE New York Policy also specifically names DURST and
HUNTER ROBERTS as additional insureds with respect to liability for bodily injuries caused, in
whole or in part, by GELLER's acts or omissions in performing operations for DURST and
HUNTER ROBERTS.
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27. DURST and HUNTER ROBERTS complied with all conditions precedent under
the HARLEYSVILLE New York Policy.
28. The Underlying Miller Action seeks to impose liability on DURST and
HUNTER ROBERTS for injuries caused, in whole or in part, by GELLER's work at the Project,
and in the performance of GELLER's operations for DURST and HUNTER ROBERTS.
DURST and HUNTER ROBERTS therefore are additional insureds under the HARLEYSVILLE
New York Policy.
29. HARLEYSVILLE OF NEW YORK was timely notified of the commencement
of the Underlying Miller Action.
30. DURST and HUNTER ROBERTS timely tendered their defense and
indemnification with respect to the Underlying Miller Action to HARLEYSVILLE OF NEW
YORK.
31. HARLEYSVILLE OF NEW YORK has refused to accept the defense and
indemnification of DURST and HUNTER ROBERTS with respect to the Underlying Miller
Action, in contravention of its obligations under the express terms of the HARLEYSVILLE New
York Policy.
B. The Harlevsville Umbrella Policy
32. HARLEYSVILLE WORCESTER in consideration for the premiums that
GELLER paid, issued umbrella liability insurance to GELLER under policy no. CMB 063594R
Policy"
("the HARLEYSVILLE Worcester Policy") for periods of coverage that included January 15,
2016.
33. The HARLEYSVILLE Worcester Policy was in full force and effect on January
15, 2016.
34. The HARLEYSVILLE Worcester Policy expressly provides that any additional
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insurance"
insured under any policy of "underlying is automatically an insured under the
HARLEYSVILLE Worcester Policy. Accordingly, DURST and HUNTER ROBERTS are
additional insureds under the HARLEYSVILLE Worcester Policy.
35. DURST and HUNTER ROBERTS complied with all conditions precedent
under the HARLEYSVILLE Worcester Policy.
36. HARLEYSVILLE WORCESTER was timely notified of the institution of the
Underlying Miller Action.
37. DURST and HUNTER ROBERTS timely tendered their defense and
indemnification with respect to the Underlying Miller Action to HARLEYSVILLE
WORCESTER.
38. HARLEYSVILLE WORCESTER has refused to accept the defense and
indemnification of DURST and HUNTER ROBERTS with respect to the Underlying Miller
Action, in contravention of its obligations under the express terms of the HARLEYSVILLE
Worcester Policy.
C. DURST and HUNTER ROBERTS Have Been Damaged As A Result of the Rejection
of Their Tenders of De fense and Indemnification.
39. By reason of the refusals of HARLEYSVILLE OF NEW YORK and
ROBERTS'
HARLEYSVILLE WORCESTER to accept DURST's and HUNTER tenders with
respect to the Underlying Miller Action, DURST and HUNTER ROBERTS have been deprived
of the insurance coverage available under the HARLEYSVILLE New York and
HARLEYSVILLE Worcester Policies. As a result of this deprivation of insurance coverage,
DURST and HUNTER ROBERTS have sustained damages, and will sustain additional damages
should the plaintiff in the Underlying Miller Action obtain recoveries against DURST and
HUNTER ROBERTS that fall within the scope or limits of the HARLEYSVILLE New York and
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HARLEYSVILLE Worcester Policies.
40. DURST and HUNTER ROBERTS have no adequate remedy at law.
AS AND FOR A FIRST CAUSE OF ACTION
(AGAINST GELLER FOR BREACH OF CONTRACT)
41. DURST and HUNTER ROBERTS repeat, reiterate and reallege each and every
"1" "40"
allegation contained in Paragraphs through of this Verified Complaint with the same
force and effect as if fully set forth herein.
42. GELLER contractually agreed to procure insurance coverage that would defend
and indemnify DURST and HUNTER ROBERTS for all claims arising out of or occurring in
connection with its work at the Project, or in preparation for its work on the Project, or for any
extension, modification or amendment to its work on the Project.
43. GELLER breached its contract with HUNTER ROBERTS and failed to provide
the coverage that itcontractually agreed to provide.
44. Specifically, pursuant to the HUNTER ROBERTS-GELLER Contract,
GELLER was required to defend and indemnify DURST and HUNTER ROBERTS for:
All liability, damage, loss, claims, demands and actions of any nature
whatsoever which arise out of, relate to or resulting from the performance
of work by the GELLER.
45. Also, pursuant to the HUNTER ROBERTS-GELLER Contract, GELLER was
required to procure insurance coverage for DURST and HUNTER ROBERTS that would defend
and indemnify them for all liability, damage, loss, claims, demands and actions of any nature
whatsoever which arise out of, relate to, or result from the performance of work by GELLER.
46. Under the HUNTER ROBERTS-GELLER Contract, GELLER agreed to
procure policies of insurance that would provide additional insured coverage to DURST and
'
HUNTER ROBERTS on a primary basis, without any contribution from other insurance policies
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that DURST and HUNTER ROBERTS may have obtained.
47. GELLER failed to procure the contractually required insurance coverage that
would have defended, indemnified and otherwise protected DURST and HUNTER ROBERTS
against the Underlying Miller Action.
48. As GELLER failed to procure the contractually required insurance coverage, it
is liable for, and will be required to, fully reimburse DURST and HUNTER ROBERTS for all
attorneys'
past and future fees, disbursements, costs, and expenses, as well as for amounts
associated with judgments, verdicts and or settlements in the Underlying Miller Action.
49. GELLER failed to fully comply with its obligations as detailed in the HUNTER
ROBERTS-GELLER Contract.
50. GELLER's failure to fully comply with the obligations clearly set out in the
HUNTER ROBERTS-GELLER Contract is the actual and/or proximate cause of the damages
alleged by the DURST and HUNTER ROBERTS.
AS AND FOR A SECOND CAUSE OF ACTION
(AGAINST HARLEYSVILLE NEW YORK AND
HARLEYSVILLE WORCESTER FOR DECLARATORY RELIEF)
51. DURST and HUNTER ROBERTS repeat, reallege and reiterate each and every
"1" "50"
allegation contained in paragraphs through of the Verified Complaint as if fully set
forth herein.
52. HARLEYSVILLE OF NEW YORK and HARLEYSVILLE WORCESTER have
refused to provide DURST and HUNTER ROBERTS with defense and indemnification in
connection with the Underlying Miller Action, and have thereby breached the express terms and
conditions and obligations of the HARLEYSVILLE NEW YORK and HARLEYSVILLE
WORCESTER policies.
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53. DURST and HUNTER ROBERTS have suffered and will continue to suffer
damages, harm and prejudice by virtue of HARLEYSVILLE OF NEW YORK's and
HARLEYSVILLE WORCESTER's refusals to acknowledge and fulfill their contractual
obligations described above. The ongoing damages, harm and prejudice include, but are not
limited to, the costs of defending the Underlying Miller Action and any recoveries that the
plaintiffs in the Underlying Miller Action may obtain against DURST and HUNTER ROBERTS
in the future.
54. By reason of the foregoing, DURST and HUNTER ROBERTS are entitled to a
declaration that HARLEYSVILLE OF NEW YORK and HARLEYSVILLE WORCESTER are
obligated to defend and indemnify DURST and HUNTER ROBERTS against the claims asserted
in the Underlying Miller Action, and that the HARLEYSVILLE New York and
HARLEYSVILLE Worcester Policies provide DURST and HUNTER ROBERTS with insurance
coverage which is primary to any insurance coverage available to DURST and HUNTER i
ROBERTS under any other policies of insurance, which will not contribute with the insurance
coverage provided by the HARLEYSVILLE NEW YORK and HARLEYSVILLE
WORCESTER policies.
55. DURST and HUNTER ROBERTS have no other adequate remedy at law.
AS AND FOR A THIRD CAUSE OF ACTION
(AGAINST HARLEYSVILLE NEW YORK AND HARLEYSVILLE WORCESTER
ATTORNEYS'
FOR FEES, COSTS AND DISBURSEMENTS)
56. DURST and HUNTER ROBERTS repeat, reallege and reiterate each and every
"1" "55"
allegation set forth in Paragraphs through of this Verified Complaint as if fully set forth at
length herein.
attorneys'
57. DURST and HUNTER ROBERTS have incurred, and continue to incur,
fees, costs, disbursements and other expenses in connection with their defense in the Underlying
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Miller Action.
58. All expenses incurred in the defense of DURST and HUNTER ROBERTS have
been incurred in good faith and due to the refusals of HARLEYSVILLE OF NEW YORK and
HARLEYSV1LLE WORCESTER to comply with their obligations to defend and indemnify
DURST and HUNTER ROBERTS with respect to the Underlying Miller Action.
59. DURST and HUNTER ROBERTS have suffered and will continue to suffer
damages, harm and prejudice as a result of HARLEY
Preview
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NO. 1 RECEIVED NYSCEF: 05/23/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X ------------------------------------------------------------------------X DURST PYRAMID LLC and HUNTER ROBERTS Index No.: CONSTRUCTION GROUP, L.L.C., SUMMONS Plaintiffs, - against - FRED GELLER ELECTRICAL, INC., HARLEYSVILLE INSURANCE COMPANY OF NEW YORK, and HARLEYSVILLE WORCESTER INSURANCE COMPANY, Defendants. -----------_________________________________----------------------------X TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action, and Plaintiffs' to serve a copy of your Answer on the attorneys, CULLEN and DYKMAN LLP, within twenty (20) days after the service of this summons exclusive of the day of service (or within thirty (30) days after the service is complete ifthis summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Verified Complaint. Dated: New York, New York May 23, 2018 ' CULLEN and D LLP By: - - Scott M. Shapiro, Esq. Attorneys for Plaintiffs DURST PYRAMID LLC and HUNTER ROBERTS CONSTRUCTION GROUP, L.L.C 14°¹ 44 Wall Street, 14 Floor (212) 732-2000 File No.: 5448-31 (00428812.DOCX) 1 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 TO: Via N.Y.S. Department of Financial Services HARLEYSVILLE INSURANCE COMPANY OF NEW YORK Via N.Y.S. Devartment of Financial Services HARLEYSVILLE WORCESTER INSURANCE COMPANY Via Secretary of State FRED GELLER ELECTRICAL, INC. {00456331.DOCX) 2 2 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X DURST PYRAMID LLC and HUNTER ROBERTS Index No.: CONSTRUCTION GROUP, L.L.C., Plaintiffs, VERIFIED COMPLAINT - against - FRED GELLER ELECTRICAL, INC., HARLEYSVILLE INSURANCE COMPANY OF NEW YORK, and HARLEYSVILLE WORCESTER INSURANCE COMPANY, Defendants. ------------------------------------------------------------------------X Plaintiffs DURST PYRAMID LLC ("DURST") and HUNTER ROBERTS ROBERTS" CONSTRUCTION GROUP, L.L.C. ("HUNTER ROBERTS"), by their attorneys, CULLEN AND DYKMAN LLP, as and for their Verified Complaint herein, allege, upon information and belief as follows: NATURE OF THE ACTION 1. DURST and HUNTER ROBERTS seek an Order declaring that: a. Defendant FRED GELLER ELECTRICAL, INC. breached its contractual agreement to DURST and HUNTER ROBERTS by failing to procure the required and proper insurance coverage causing DURST and HUNTER ROBERTS to sustain damages as a result of that breach; b. Defendants HARLEYSVILLE INSURANCE COMPANY OF NEW YORK and HARLEYSVILLE WORCESTER INSURANCE COMPANY are obligated to defend and indemnify DURST and HUNTER ROBERTS for the claims asserted in the personal injury action commenced by ROBERT ARTHUR MILLER in the Supreme Court of the State of New York, New York County, Index Number Action" 159575/2017/2015 ("the Underlying Miller Action"); (00428812.DOCX) 3 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 c. DURST and HUNTER ROBERTS are additional insureds under the liability insurance policies issued by defendants HARLEYSVILLE INSURANCE COMPANY OF NEW YORK and HARLEYSVILLE WORCESTER INSURANCE COMPANY to defendant FRED GELLER ELECTRICAL, INC.; d. Defendants HARLEYSVILLE INSURANCE COMPANY OF NEW YORK and HARLEYSVILLE WORCESTER INSURANCE COMPANY are obligated to reimburse DURST and HUNTER ROBERTS for alllegal fees and expenses they have incurred and will incur in defending the Underlying Miller Action; e. Any insurance policies issued to DURST and HUNTER ROBERTS are excess over the liability insurance policies that defendants HARLEYSVILLE INSURANCE COMPANY OF NEW YORK and HARLEYSVILLE WORCESTER INSURANCE COMPANY issued to defendant FRED GELLER ELECTRICAL, INC., and will not contribute with those policies in connection with the Underlying Miller Action; f. DURST and HUNTER ROBERTS are entitled to an inquest on the issue of damages they have incurred, including, but not limited to, their past and future legal fees, disbursements, costs and expenses; and, g. For such other, further and different relief that this Court deems just and proper. THE PARTIES AND JURISDICTION 2. At all times hereinafter mentioned, DURST was and is a domestic limited liability company duly organized and existing under and by virtue of the laws of the State of New York and is authorized to do business in the State of New York. 3. At all times hereinafter mentioned, HUNTER ROBERTS was and is a foreign limited liability company duly organized and existing under and by virtue of the laws of the State of Delaware and is authorized to do business in the State of New York. 4. At all times hereinafter mentioned, FRED GELLER ELECTRICAL, INC. ("GELLER"), was and is a domestic business corporation duly licensed and authorized to conduct business within the State of New York. (00456331.DOCX) 2 4 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 5. At all times hereinafter mentioned, HARLEYSVILLE INSURANCE COMPANY YORK" OF NEW YORK ("HARLEYSVILLE OF NEW YORK"), was and is a domestic business corporation duly licensed and authorized to conduct business within the State of New York. 6. At alltimes hereinafter mentioned, HARLEYSVILLE OF NEW YORK was and is a foreign business corporation duly licensed and authorized to conduct business in the State of New York. 7. At all times hereinafter mentioned, HARLEYSVILLE OF NEW YORK was and is an insurance company licensed to do, and stilldoes, insurance business in the State of New York. 8. This Court has personal jurisdiction over HARLEYSVILLE OF NEW YORK because, at allrelevant times hereafter mentioned, HARLEYSVILLE OF NEW YORK engaged in the business of insurance in the State of New York. 9. At all times hereinafter mentioned, HARLEYSVLLE WORCESTER WORCESTER" INSURANCE COMPANY ("HARLEYSVILLE WORCESTER") was and is a domestic business corporation duly licensed and authorized to conduct business within the State of New York. 10. At all times hereinafter mentioned, HARLEYSVILLE WORCESTER was and is a foreign business corporation duly licensed and authorized to conduct business in the State of New York. 11. At all times hereinafter mentioned, HARLEYSVILLE WORCESTER was and is an insurance company licensed to do, and stilldoes, insurance business in the State of New York. 12. This Court has personal jurisdiction over HARLEYSVILLE WORCESTER because, at all relevant times hereafter mentioned, HARLEYSVILLE WORCESTER engaged in the business of insurance in the State of New York. (00456331.DOCX1 3 5 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 THE UNDERLYlNG MILLER ACTION 13. The plaintiff in the Underlying Miller Action alleges that he sustained personal injuries in an accident that occurred on January 15, 2016 at the Durst Pyramid Project at 625 57* Project" West 57 Street in Manhattan ("the Project"). The plaintiff allegedly fell while performing work at the Project and claims that the Project sitewas an unsafe workplace. 14. On February 19, 2018 the plaintiff in the Underlying Miller Action filed an Amended Complaint naming GELLER as a defendant, alleging that inadequate lighting was a cause of the accident and that GELLER was negligent. 15. The allegations in the Complaint and Amended Complaint in the Underlying Miller Action are incorporated by reference herein, but without DURST and HUNTER ROBERTS admitting the truth thereof. 16. Shortly after the Underlying Miller Action was commenced, DURST and ' HUNTER ROBERTS appointed defense counsel to represent them, and this representation continues up to the present time. THE CONSTRUCTION AGREEMENT 17. Prior to January 15, 2016, HUNTER ROBERTS entered into a contract with GELLER whereby GELLER agreed to perform electrical work and/or services, including the Contract" provision of temporary lighting, at the Project ("the HUNTER ROBERTS-GELLER Contract"). 18. The HUNTER ROBERTS-GELLER Contract was in full force and effect on January 15, 2016. 19. The HUNTER ROBERTS-GELLER Contract contains provisions whereby GELLER agreed to procure and keep in full force and effect, primary and noncontributory general liability insurance coverage naming DURST and HUNTER ROBERTS as additional insureds. (00456331.DOCX) 4 6 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 "Indemnity" 20. Further, the HUNTER ROBERTS-GELLER Contract included an obligation that required GELLER to indemnify and hold DURST and HUNTER ROBERTS harmless from and against any damages and claims for bodily injury arising out of or from the performance of the work GELLER. the provision in the HUNTER ' by Specifically, indemnity ROBERTS-GELLER Contract states: ARTICLE 8 (Indemnification and Insurance) 8.1 To the extent permitted by law, and to the extend not caused in whole or in part by an Indemnitee's own negligence, the Trade Contractor shall indemnify, defend, save and hold harmless Hunter Roberts and the Owner and their respective members, consultants, engineers, design professionals, partners, parents, affiliates, agents, officers, directors, shareholders and employees and anyone else acting for or on behalf of any of them and any other required Indemnitee required by the Owner (herein collectively called "Indemnitees") from and against all liability, damage, loss, claims, demands, suits, obligations, prohibitions, fines, penalties and actions of any nature whatsoever, including attorney's fees, which arise out of or are connected with or are claimed to arise out of or be connected with the performance of Work by Trade Contractor, or any act or omission of the Trade Contractor, including, without limitation, any work previously performed by, on behalf of or through Trade Contractor at the Site, whether or not caused in part by any Indemnitee(s). As used in this Article 8, the Contractor" term Trade shall include its subcontractors of any tier, suppliers, agents, officers, consultants, design professionals and employees. Without limiting the generality of the foregoing, such defense and indemnity include all liability, damages, loss, claims, demands and actions on account of personal injury, death, property loss or economic loss to any Indemnitees' Indemnitee, any of employees, agents, contractors or subcontractors, licensees or invitees, or other contractor or subcontractor, their employees, agents, contractors or subcontractors, licensees or invitees, or other contractor or subcontractor, their employees, agents, subcontractors, licensees or invitees or to any other persons, whether based upon, or claimed to be based upon, statutory (including, without limiting workers' the generality of the foregoing, compensation), contractual, tort or other liability of any Indemnitee, contractor, subcontractor or any other persons. In addition, the liability, damages, loss, claims, demands and actions indemnified against shall include all liability, damage, loss, claims, demands and actions for trademark, copyright or patent infringement, for "intangible" unfair competition or infringement of any other so-called property rights which arise out of any failure of the Trade Contractor to discharge itsduties. (00456331.DOCX) 5 7 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 21. GELLER, as a contracting party, knew and was aware that DURST and HUNTER ROBERTS were entitled to insurance coverage and had all rights concerning additional insureds. 22. GELLER, pursuant to the HUNTER ROBERTS-GELLER Contract, agreed to procure liability insurance policies naming DURST and HUNTER ROBERTS as additional insureds with respect to bodily injury claims arising out of the work that GELLER was performing at the Project. INSURANCE COVERAGE PROCURED BY GELLER A. The Harleysville Primary Policy 23. HARLEYSVILLE OF NEW YORK, in consideration for the premiums that GELLER paid, issued primary general liability insurance to GELLER under policy number MPA Policy" 063596R (the "HARLEYSVILLE New York Policy") for periods of coverage that included January 15, 2016. 24. The HARLEYSVILLE New York Policy was in full force and effect on January 15, 2016. "automatic" 25. The HARLEYSVILLE New York Policy provides additional insured coverage for bodily injury claims to any person or organization that GELLER had agreed, in writing, to include as an additional insured, as long as the potential liability is for injuries caused, in whole or in part, by GELLER's acts or omissions in performing operations for that person or organization. 26. The HARLEYSVILLE New York Policy also specifically names DURST and HUNTER ROBERTS as additional insureds with respect to liability for bodily injuries caused, in whole or in part, by GELLER's acts or omissions in performing operations for DURST and HUNTER ROBERTS. {00456331.DOCX) 6 8 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 27. DURST and HUNTER ROBERTS complied with all conditions precedent under the HARLEYSVILLE New York Policy. 28. The Underlying Miller Action seeks to impose liability on DURST and HUNTER ROBERTS for injuries caused, in whole or in part, by GELLER's work at the Project, and in the performance of GELLER's operations for DURST and HUNTER ROBERTS. DURST and HUNTER ROBERTS therefore are additional insureds under the HARLEYSVILLE New York Policy. 29. HARLEYSVILLE OF NEW YORK was timely notified of the commencement of the Underlying Miller Action. 30. DURST and HUNTER ROBERTS timely tendered their defense and indemnification with respect to the Underlying Miller Action to HARLEYSVILLE OF NEW YORK. 31. HARLEYSVILLE OF NEW YORK has refused to accept the defense and indemnification of DURST and HUNTER ROBERTS with respect to the Underlying Miller Action, in contravention of its obligations under the express terms of the HARLEYSVILLE New York Policy. B. The Harlevsville Umbrella Policy 32. HARLEYSVILLE WORCESTER in consideration for the premiums that GELLER paid, issued umbrella liability insurance to GELLER under policy no. CMB 063594R Policy" ("the HARLEYSVILLE Worcester Policy") for periods of coverage that included January 15, 2016. 33. The HARLEYSVILLE Worcester Policy was in full force and effect on January 15, 2016. 34. The HARLEYSVILLE Worcester Policy expressly provides that any additional (00456331. DOCX) 7 9 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 insurance" insured under any policy of "underlying is automatically an insured under the HARLEYSVILLE Worcester Policy. Accordingly, DURST and HUNTER ROBERTS are additional insureds under the HARLEYSVILLE Worcester Policy. 35. DURST and HUNTER ROBERTS complied with all conditions precedent under the HARLEYSVILLE Worcester Policy. 36. HARLEYSVILLE WORCESTER was timely notified of the institution of the Underlying Miller Action. 37. DURST and HUNTER ROBERTS timely tendered their defense and indemnification with respect to the Underlying Miller Action to HARLEYSVILLE WORCESTER. 38. HARLEYSVILLE WORCESTER has refused to accept the defense and indemnification of DURST and HUNTER ROBERTS with respect to the Underlying Miller Action, in contravention of its obligations under the express terms of the HARLEYSVILLE Worcester Policy. C. DURST and HUNTER ROBERTS Have Been Damaged As A Result of the Rejection of Their Tenders of De fense and Indemnification. 39. By reason of the refusals of HARLEYSVILLE OF NEW YORK and ROBERTS' HARLEYSVILLE WORCESTER to accept DURST's and HUNTER tenders with respect to the Underlying Miller Action, DURST and HUNTER ROBERTS have been deprived of the insurance coverage available under the HARLEYSVILLE New York and HARLEYSVILLE Worcester Policies. As a result of this deprivation of insurance coverage, DURST and HUNTER ROBERTS have sustained damages, and will sustain additional damages should the plaintiff in the Underlying Miller Action obtain recoveries against DURST and HUNTER ROBERTS that fall within the scope or limits of the HARLEYSVILLE New York and (00456331. DOCX) 8 10 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 HARLEYSVILLE Worcester Policies. 40. DURST and HUNTER ROBERTS have no adequate remedy at law. AS AND FOR A FIRST CAUSE OF ACTION (AGAINST GELLER FOR BREACH OF CONTRACT) 41. DURST and HUNTER ROBERTS repeat, reiterate and reallege each and every "1" "40" allegation contained in Paragraphs through of this Verified Complaint with the same force and effect as if fully set forth herein. 42. GELLER contractually agreed to procure insurance coverage that would defend and indemnify DURST and HUNTER ROBERTS for all claims arising out of or occurring in connection with its work at the Project, or in preparation for its work on the Project, or for any extension, modification or amendment to its work on the Project. 43. GELLER breached its contract with HUNTER ROBERTS and failed to provide the coverage that itcontractually agreed to provide. 44. Specifically, pursuant to the HUNTER ROBERTS-GELLER Contract, GELLER was required to defend and indemnify DURST and HUNTER ROBERTS for: All liability, damage, loss, claims, demands and actions of any nature whatsoever which arise out of, relate to or resulting from the performance of work by the GELLER. 45. Also, pursuant to the HUNTER ROBERTS-GELLER Contract, GELLER was required to procure insurance coverage for DURST and HUNTER ROBERTS that would defend and indemnify them for all liability, damage, loss, claims, demands and actions of any nature whatsoever which arise out of, relate to, or result from the performance of work by GELLER. 46. Under the HUNTER ROBERTS-GELLER Contract, GELLER agreed to procure policies of insurance that would provide additional insured coverage to DURST and ' HUNTER ROBERTS on a primary basis, without any contribution from other insurance policies (00456331.DOCX) 9 11 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 that DURST and HUNTER ROBERTS may have obtained. 47. GELLER failed to procure the contractually required insurance coverage that would have defended, indemnified and otherwise protected DURST and HUNTER ROBERTS against the Underlying Miller Action. 48. As GELLER failed to procure the contractually required insurance coverage, it is liable for, and will be required to, fully reimburse DURST and HUNTER ROBERTS for all attorneys' past and future fees, disbursements, costs, and expenses, as well as for amounts associated with judgments, verdicts and or settlements in the Underlying Miller Action. 49. GELLER failed to fully comply with its obligations as detailed in the HUNTER ROBERTS-GELLER Contract. 50. GELLER's failure to fully comply with the obligations clearly set out in the HUNTER ROBERTS-GELLER Contract is the actual and/or proximate cause of the damages alleged by the DURST and HUNTER ROBERTS. AS AND FOR A SECOND CAUSE OF ACTION (AGAINST HARLEYSVILLE NEW YORK AND HARLEYSVILLE WORCESTER FOR DECLARATORY RELIEF) 51. DURST and HUNTER ROBERTS repeat, reallege and reiterate each and every "1" "50" allegation contained in paragraphs through of the Verified Complaint as if fully set forth herein. 52. HARLEYSVILLE OF NEW YORK and HARLEYSVILLE WORCESTER have refused to provide DURST and HUNTER ROBERTS with defense and indemnification in connection with the Underlying Miller Action, and have thereby breached the express terms and conditions and obligations of the HARLEYSVILLE NEW YORK and HARLEYSVILLE WORCESTER policies. (00456331.DOCX} 10 12 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 53. DURST and HUNTER ROBERTS have suffered and will continue to suffer damages, harm and prejudice by virtue of HARLEYSVILLE OF NEW YORK's and HARLEYSVILLE WORCESTER's refusals to acknowledge and fulfill their contractual obligations described above. The ongoing damages, harm and prejudice include, but are not limited to, the costs of defending the Underlying Miller Action and any recoveries that the plaintiffs in the Underlying Miller Action may obtain against DURST and HUNTER ROBERTS in the future. 54. By reason of the foregoing, DURST and HUNTER ROBERTS are entitled to a declaration that HARLEYSVILLE OF NEW YORK and HARLEYSVILLE WORCESTER are obligated to defend and indemnify DURST and HUNTER ROBERTS against the claims asserted in the Underlying Miller Action, and that the HARLEYSVILLE New York and HARLEYSVILLE Worcester Policies provide DURST and HUNTER ROBERTS with insurance coverage which is primary to any insurance coverage available to DURST and HUNTER i ROBERTS under any other policies of insurance, which will not contribute with the insurance coverage provided by the HARLEYSVILLE NEW YORK and HARLEYSVILLE WORCESTER policies. 55. DURST and HUNTER ROBERTS have no other adequate remedy at law. AS AND FOR A THIRD CAUSE OF ACTION (AGAINST HARLEYSVILLE NEW YORK AND HARLEYSVILLE WORCESTER ATTORNEYS' FOR FEES, COSTS AND DISBURSEMENTS) 56. DURST and HUNTER ROBERTS repeat, reallege and reiterate each and every "1" "55" allegation set forth in Paragraphs through of this Verified Complaint as if fully set forth at length herein. attorneys' 57. DURST and HUNTER ROBERTS have incurred, and continue to incur, fees, costs, disbursements and other expenses in connection with their defense in the Underlying (00456331.DOCX) 11 13 of 15 FILED: NEW YORK COUNTY CLERK 05/23/2018 10:18 AM INDEX NO. 154821/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/23/2018 Miller Action. 58. All expenses incurred in the defense of DURST and HUNTER ROBERTS have been incurred in good faith and due to the refusals of HARLEYSVILLE OF NEW YORK and HARLEYSV1LLE WORCESTER to comply with their obligations to defend and indemnify DURST and HUNTER ROBERTS with respect to the Underlying Miller Action. 59. DURST and HUNTER ROBERTS have suffered and will continue to suffer damages, harm and prejudice as a result of HARLEY