Preview
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DURST PYRAMID LLC and HUNTER
ROBERTS, Index No.: 154825/2018
Plaintiffs,
vs.
DEFENDANTS HARLEYSVILLE
FRED GELLER ELECTRICAL, INC., INSURANCE COMPANY OF NEW
HARLEYSVILLE INSURANCE YORK AND HARLEYSVILLE
COMPANY OF NEW YORK, and WORCESTER INSURANCE
HARLEYSVILLE WORCESTER COMPANY’S ANSWER AND
INSURANCE COMPANY, AFFIRMATIVE DEFENSES
Defendants.
Defendants Harleysville Insurance Company of New York (“Harleysville New
York”), and Harleysville Worcester Insurance Company (“Harleysville Worcester”),
(together, “Harleysville”), by and through their attorneys, Riker, Danzig, Scherer,
Hyland & Perretti, LLP, and by way of a Verified Answer to the Verified Complaint
(the “Complaint”) filed by the plaintiffs Durst Pyramid LLC (“Durst”) and Hunter
Roberts Construction Group, LLC (“Hunter Roberts”) (collectively, “Plaintiffs”), state
as follows:
NATURE OF THE ACTION
1. The allegations contained in Paragraph 1 of the Complaint constitute
legal argument and other conclusions as to which no response is required. To the extent
that Paragraph 1 of the Complaint can be construed to assert allegations against
Harleysville to which a response is required, Harleysville answers as follows:
(a) The allegations contained in Subparagraph (a) of the Complaint are
not directed at Harleysville, and therefore no response is required.
1 of 12
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018
To the extent Subparagraph (a) asserts allegations against
Harleysville to which a response is required, the allegations are
denied.
(b) Denied.
(c) Denied.
(d) Denied.
(e) Denied.
(f) Denied.
(g) Denied.
THE PARTIES AND JURISDICTION
2-4. Harleysville is without knowledge or information sufficient to form a
belief as to the truth of the allegations contained in Paragraphs 2 through 4 of the
Complaint.
5-7. Harleysville admits only that Harleysville New York is, and at all
relevant times was, a corporation organized under the laws of the Commonwealth of
Pennsylvania with its principal place of business in the Commonwealth of
Pennsylvania.
8. The allegations contained in Paragraph 8 of the Complaint constitute
legal argument and other conclusions as to which no response is required.
9-11. Harleysville admits only that Harleysville Worcester is, and at all
relevant times was, a corporation organized under the laws of the Commonwealth of
Pennsylvania with its principal place of business in the Commonwealth of
Pennsylvania.
2
2 of 12
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018
12. The allegations contained in Paragraph 12 of the Complaint constitute
legal argument and other conclusions as to which no response is required.
THE UNDERLYING SLESZYNSKI LITIGATION
13. Harleysville admits only the filing of the complaint in New York Supreme
Court, New York County under caption, Sleszynski et al. v. Hunter Roberts
Construction Group, L.L.C. and Durst Pyramid LLC, index number 154825/2018 (the
“Underlying Action”), the terms of which speak for itself. To the extent the allegations
contained in Paragraph 13 of the Complaint concerning the claims in the Underlying
Action vary from the terms of the complaint in the Underlying Action, the allegations
are denied.
14. Harleysville is without knowledge or information sufficient to form a
belief as to the truth of the allegation contained in Paragraph 14.
15. Harleysville admits only the filing of the Amended Complaint in New
York Supreme Court, New York County under caption, Pawel Sleszynski and Marta
Slesynski v. Hunter Roberts Construction Group, L.L.C., Durst Pyramid LLC, and Fred
Geller Electrical, LLC, index number 154825/2018 (the “Underlying Action”), the
terms of which speak for itself. To the extent the allegations contained in Paragraph 15
of the Complaint concerning the claims in the Underlying Action vary from the terms of
the amended complaint in the Underlying Action, the allegations are denied.
16. The allegations contained in Paragraph 16 of the Complaint constitute
legal argument and other conclusions as to which no response is required.
17. Harleysville is without knowledge or information sufficient to form a
belief as to the truth of the allegation contained in Paragraph 17 of the Complaint.
3
3 of 12
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018
THE CONSTRUCTION AGREEMENT
18-23. The allegations contained in Paragraphs 18 through 23 of the Complaint
constitute legal argument and other conclusions as to which no response is required. To
the extent Paragraphs 18 through 23 can be construed to assert allegations against
Harleysville to which a response is required, Harleysville is without knowledge or
information sufficient to form a belief as to the truth of the allegations.
THE INSURANCE POLICIES
A. The Harleysville New York Policy.
24-27. The allegations contained in Paragraphs 24 through 27 of the Complaint
constitute legal argument and other conclusions as to which no response is required. To
the extent that Paragraphs 24 through 27 of the Complaint can be construed to assert
allegations against Harleysville to which a response is required, Harleysville New York
admits only that it issued the insurance policy bearing number MPA063596R for the
period of October 1, 2015 to October 1, 2016 (the “Harleysville New York Policy”), the
terms of which speak for themselves. To the extent the allegations contained in
Paragraphs 24 through 27 of the Complaint vary from the terms of the Harleysville New
York Policy, the allegations are denied.
28-31. The allegations contained in Paragraphs 28 through 31 of the Complaint
constitute legal argument and other conclusions as to which no response is required. To
the extent that Paragraphs 28 through 31 of the Complaint can be construed to assert
allegations against Harleysville to which a response is required, the allegations are
denied.
4
4 of 12
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018
32. The allegations contained in Paragraph 32 of the Complaint constitute
legal argument and other conclusions as to which no response is required. To the extent
that Paragraph 32 of the Complaint can be construed to assert allegations against
Harleysville to which a response is required, Harleysville admits only that it has not
defended or indemnified Plaintiffs in the Underlying Action, and denies any remaining
allegations.
B. The Harleysville Worcester Policy.
33-34. The allegations contained in Paragraphs 33 and 34 of the Complaint
constitute legal argument and other conclusions as to which no response is required. To
the extent that Paragraphs 33 and 34 of the Complaint can be construed to assert
allegations against Harleysville to which a response is required, Harleysville Worcester
admits only that it issued the insurance policy bearing number CMB063594R for the
period of October 1, 2015 to October 1, 2016 (the “Harleysville Worcester Policy”), the
terms of which speak for themselves. To the extent the allegations contained in
Paragraphs 33 and 34 of the Complaint vary from the terms of the Harleysville
Worcester Policy, the allegations are denied.
35. The allegations contained in Paragraph 35 of the Complaint constitute
legal argument and other conclusions as to which no response is required. To the extent
that Paragraph 35 of the Complaint can be construed to assert allegations against
Harleysville to which a response is required, Harleysville Worcester admits only that it
issued the Harleysville Worcester Policy, the terms of which speaks for itself. To the
extent the allegations contained in Paragraph 35 of the Complaint vary from the terms
5
5 of 12
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018
of the Harleysville Worcester Policy, the allegations are denied, as is the allegation that
Plaintiffs are additional insureds under the Harleysville Worcester Policy.
36-38. The allegations contained in Paragraphs 36 through 38 of the Complaint
constitute legal argument and other conclusions as to which no response is required. To
the extent that Paragraphs 36 through 38 of the Complaint can be construed to assert
allegations against Harleysville to which a response is required, the allegations are
denied.
39. The allegations contained in Paragraph 39 of the Complaint constitute
legal argument and other conclusions as to which no response is required. To the extent
that Paragraph 39 of the Complaint can be construed to assert allegations against
Harleysville to which a response is required, Harleysville admits only that it has not
defended or indemnified Plaintiffs in the Underlying Action, and denies any remaining
allegations.
C. Plaintiffs’ Alleged Damages.
40-41. The allegations contained in Paragraphs 40 and 41 of the Complaint
constitute legal argument and other conclusions as to which no response is required. To
the extent that Paragraphs 40 and 41 of the Complaint can be construed to assert
allegations against Harleysville to which a response is required, the allegations are
denied.
AS AND FOR A FIRST CAUSE OF ACTION
42. Harleysville repeats each and every response contained in the preceding
paragraphs as though set forth at length herein.
6
6 of 12
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018
43-51 The allegations contained in Paragraphs 43 through 51 of the Complaint
are not directed at Harleysville, and therefore no response is required. To the extent
Paragraphs 43 through 50 assert allegations against Harleysville to which a response is
required, the allegations are denied.
AS AND FOR A SECOND CAUSE OF ACTION
52. Harleysville repeats each and every response contained in the preceding
paragraphs as though set forth at length herein.
53-56. The allegations contained in Paragraphs 53 through 56 of the Complaint
constitute legal argument and other conclusions as to which no response is required. To
the extent Paragraph 53 through 56 can be construed to assert allegations against
Harleysville to which a response is required, the allegations are denied.
AS AND FOR A THIRD CAUSE OF ACTION
57. Harleysville repeats each and every response contained in the preceding
paragraphs as though set forth at length herein.
58. The allegations contained in Paragraph 58 of the Complaint constitute
legal argument and other conclusions as to which no response is required. To the extent
Paragraph 58 can be construed to assert allegations against Harleysville to which a
response is required, Harleysville is without knowledge or information sufficient to
form a belief as to the truth of the allegations.
59-61. The allegations contained in Paragraphs 59 through 61 of the Complaint
constitute legal argument and other conclusions as to which no response is required. To
7
7 of 12
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018
the extent Paragraphs 59 through 61 can be construed to assert allegations against
Harleysville to which a response is required, the allegations are denied.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Plaintiffs do not qualify as a named insured, insured or additional insured on the
Harleysville Policies at issue, and as a result, Plaintiffs have no standing to assert any
claim against Harleysville.
SECOND AFFIRMATIVE DEFENSE
The claims for which Plaintiffs seek coverage from Harleysville are not covered
under the terms, conditions and exclusions to the Harleysville Policies at issue in this
matter.
THIRD AFFIRMATIVE DEFENSE
Any obligations that Harleysville owes Plaintiffs with regard to the claims
asserted against them in the Underlying Action are limited by the terms, conditions and
exclusions to the Harleysville Policies at issue in this matter.
FOURTH AFFIRMATIVE DEFENSE
Harleysville’s denial of coverage to Plaintiffs is timely and effective.
FIFTH AFFIRMATIVE DEFENSE
Insurance Law § 3420 is inapplicable to Plaintiffs’ claims for coverage under the
Harleysville Policies at issue in this matter.
SIXTH AFFIRMATIVE DEFENSE
Coverage is not triggered under the Harleysville Policies because the alleged
injuries were caused by Plaintiffs’ own acts or omissions.
8
8 of 12
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018
SEVENTH AFFIRMATIVE DEFENSE
Any coverage available to an additional insured under the Harleysville Policies
at issue would be limited to the additional insured’s liability for injuries to the extent
the injuries were proximately caused by the acts or omissions of the named insured.
EIGHTH AFFIRMATIVE DEFENSE
Coverage under the Harleysville Policies is specifically excluded to the extent
that the claim(s) arise(s) out of liability assumed/incurred by an insured under a
contract or agreement.
NINTH AFFIRMATIVE DEFENSE
Plaintiffs’ alleged damages, if any, have been caused by the acts or omissions of
Plaintiffs and/or third persons over whom Harleysville has or had no control or
responsibility, and/or other circumstances for which Harleysville is not responsible.
TENTH AFFIRMATIVE DEFENSE
Plaintiffs are not entitled to additional insured coverage for their independent
acts of negligence.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiffs are not entitled to additional insured coverage under the Harleysville
Policies to the extent that a consolidated insurance program or other wrap-up insurance
was in place for the project which gave rise to the Underlying Action.
TWELFTH AFFIRMATIVE DEFENSE
The Complaint is barred by the equitable doctrines of waiver, estoppel and/or
laches.
9
9 of 12
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018
THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiffs failed to perform obligations concerning conditions precedent and/or
subsequent for coverage under the Harleysville Policies at issue in this matter.
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiffs failed to provide Harleysville with complete and accurate information.
FIFTEENTH AFFIRMATIVE DEFENSE
Plaintiffs failed to provide timely notice of the occurrence or suit as soon as
practicable.
SIXTEENTH AFFIRMATIVE DEFENSE
Any duty of Harleysville to reimburse or to indemnify Plaintiffs with respect to
any claim or action is subject to the deductible and the applicable limits of liability,
including aggregate limits, contained in the Harleysville Policies at issue in this matter.
SEVENTEENTH AFFIRMATIVE DEFENSE
Plaintiffs are not entitled to a trial by jury as to its claims against Harleysville.
EIGHTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred because at all times, Harleysville acted in
compliance with and pursuant to all applicable statutes, contracts, industry standards
and instructions.
NINETEENTH AFFIRMATIVE DEFENSE
The language of the Harleysville Policies at issue in this matter is clear and
unambiguous.
10
10 of 12
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018
TWENTIETH AFFIRMATIVE DEFENSE
Coverage for any claims asserted against Plaintiffs is barred or limited on the
grounds that, pursuant to the “Other Insurance” clauses in the Harleysville Policies at
issue in this matter, the Harleysville Policies provide coverage that is excess over any
other valid and collectible insurance, or shares equally with such insurance.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Plaintiffs are not entitled to damages beyond those covered by the Harleysville
Policies at issue in this matter.
TWENTY-SECOND AFFIRMATIVE DEFENSE
Plaintiffs’ claims should be dismissed to the extent Plaintiffs have failed to
mitigate their damages, including, but not limited to, by seeking other coverage
available to Plaintiffs under any other insurance policy, or indemnity available to the
Plaintiffs by contract.
TWENTY-THIRD AFFIRMATIVE DEFENSE
Harleysville owes no duty to Plaintiffs.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are not ripe for adjudication because no determination has been
made as to the alleged negligence in the Underlying Action.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Regarding Plaintiffs’ claims against Harleysville for any costs incurred relating
to the Underlying Action, these costs were made without Harleysville’s prior
knowledge, approval, and consent. Thus, Plaintiffs have breached a condition
precedent under the Harleysville Policies at issue in this matter.
11
11 of 12
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint does not describe the claims made by Plaintiffs with
sufficient particularity to enable Harleysville to determine what defenses (including
defenses based on the terms, conditions and/or exclusions to the Harleysville Policies at
issue in this matter) it may have in response to Plaintiffs’ lawsuit. Harleysville
therefore reserves the right to assert all defenses which may be pertinent to the
Plaintiffs’ Complaint once the precise nature of such claims is ascertained through
discovery.
WHEREFORE, Harleysville demands judgment and requests that the Court (i)
dismiss Plaintiffs’ Complaint with prejudice as against Harleysville; (ii) award
Harleysville attorney’s fees and costs of suit; and (iii) grant Harleysville such other
relief as the Court shall deem equitable and just.
RIKER, DANZIG, SCHERER,
HYLAND & PERRETTI LLP
500 Fifth Avenue
Suite 4920
New York, New York 10110
(212) 302-6574
Attorneys for Defendants,
Harleysville Insurance Company of New York
and Harleysville Worcester Insurance
Company
By: /s/ Lance J. Kalik
Dated: Morristown, NJ Lance J. Kalik
November 26, 2018
5000648v2
12
12 of 12
Preview
FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DURST PYRAMID LLC and HUNTER ROBERTS, Index No.: 154825/2018 Plaintiffs, vs. DEFENDANTS HARLEYSVILLE FRED GELLER ELECTRICAL, INC., INSURANCE COMPANY OF NEW HARLEYSVILLE INSURANCE YORK AND HARLEYSVILLE COMPANY OF NEW YORK, and WORCESTER INSURANCE HARLEYSVILLE WORCESTER COMPANY’S ANSWER AND INSURANCE COMPANY, AFFIRMATIVE DEFENSES Defendants. Defendants Harleysville Insurance Company of New York (“Harleysville New York”), and Harleysville Worcester Insurance Company (“Harleysville Worcester”), (together, “Harleysville”), by and through their attorneys, Riker, Danzig, Scherer, Hyland & Perretti, LLP, and by way of a Verified Answer to the Verified Complaint (the “Complaint”) filed by the plaintiffs Durst Pyramid LLC (“Durst”) and Hunter Roberts Construction Group, LLC (“Hunter Roberts”) (collectively, “Plaintiffs”), state as follows: NATURE OF THE ACTION 1. The allegations contained in Paragraph 1 of the Complaint constitute legal argument and other conclusions as to which no response is required. To the extent that Paragraph 1 of the Complaint can be construed to assert allegations against Harleysville to which a response is required, Harleysville answers as follows: (a) The allegations contained in Subparagraph (a) of the Complaint are not directed at Harleysville, and therefore no response is required. 1 of 12 FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018 To the extent Subparagraph (a) asserts allegations against Harleysville to which a response is required, the allegations are denied. (b) Denied. (c) Denied. (d) Denied. (e) Denied. (f) Denied. (g) Denied. THE PARTIES AND JURISDICTION 2-4. Harleysville is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 2 through 4 of the Complaint. 5-7. Harleysville admits only that Harleysville New York is, and at all relevant times was, a corporation organized under the laws of the Commonwealth of Pennsylvania with its principal place of business in the Commonwealth of Pennsylvania. 8. The allegations contained in Paragraph 8 of the Complaint constitute legal argument and other conclusions as to which no response is required. 9-11. Harleysville admits only that Harleysville Worcester is, and at all relevant times was, a corporation organized under the laws of the Commonwealth of Pennsylvania with its principal place of business in the Commonwealth of Pennsylvania. 2 2 of 12 FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018 12. The allegations contained in Paragraph 12 of the Complaint constitute legal argument and other conclusions as to which no response is required. THE UNDERLYING SLESZYNSKI LITIGATION 13. Harleysville admits only the filing of the complaint in New York Supreme Court, New York County under caption, Sleszynski et al. v. Hunter Roberts Construction Group, L.L.C. and Durst Pyramid LLC, index number 154825/2018 (the “Underlying Action”), the terms of which speak for itself. To the extent the allegations contained in Paragraph 13 of the Complaint concerning the claims in the Underlying Action vary from the terms of the complaint in the Underlying Action, the allegations are denied. 14. Harleysville is without knowledge or information sufficient to form a belief as to the truth of the allegation contained in Paragraph 14. 15. Harleysville admits only the filing of the Amended Complaint in New York Supreme Court, New York County under caption, Pawel Sleszynski and Marta Slesynski v. Hunter Roberts Construction Group, L.L.C., Durst Pyramid LLC, and Fred Geller Electrical, LLC, index number 154825/2018 (the “Underlying Action”), the terms of which speak for itself. To the extent the allegations contained in Paragraph 15 of the Complaint concerning the claims in the Underlying Action vary from the terms of the amended complaint in the Underlying Action, the allegations are denied. 16. The allegations contained in Paragraph 16 of the Complaint constitute legal argument and other conclusions as to which no response is required. 17. Harleysville is without knowledge or information sufficient to form a belief as to the truth of the allegation contained in Paragraph 17 of the Complaint. 3 3 of 12 FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018 THE CONSTRUCTION AGREEMENT 18-23. The allegations contained in Paragraphs 18 through 23 of the Complaint constitute legal argument and other conclusions as to which no response is required. To the extent Paragraphs 18 through 23 can be construed to assert allegations against Harleysville to which a response is required, Harleysville is without knowledge or information sufficient to form a belief as to the truth of the allegations. THE INSURANCE POLICIES A. The Harleysville New York Policy. 24-27. The allegations contained in Paragraphs 24 through 27 of the Complaint constitute legal argument and other conclusions as to which no response is required. To the extent that Paragraphs 24 through 27 of the Complaint can be construed to assert allegations against Harleysville to which a response is required, Harleysville New York admits only that it issued the insurance policy bearing number MPA063596R for the period of October 1, 2015 to October 1, 2016 (the “Harleysville New York Policy”), the terms of which speak for themselves. To the extent the allegations contained in Paragraphs 24 through 27 of the Complaint vary from the terms of the Harleysville New York Policy, the allegations are denied. 28-31. The allegations contained in Paragraphs 28 through 31 of the Complaint constitute legal argument and other conclusions as to which no response is required. To the extent that Paragraphs 28 through 31 of the Complaint can be construed to assert allegations against Harleysville to which a response is required, the allegations are denied. 4 4 of 12 FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018 32. The allegations contained in Paragraph 32 of the Complaint constitute legal argument and other conclusions as to which no response is required. To the extent that Paragraph 32 of the Complaint can be construed to assert allegations against Harleysville to which a response is required, Harleysville admits only that it has not defended or indemnified Plaintiffs in the Underlying Action, and denies any remaining allegations. B. The Harleysville Worcester Policy. 33-34. The allegations contained in Paragraphs 33 and 34 of the Complaint constitute legal argument and other conclusions as to which no response is required. To the extent that Paragraphs 33 and 34 of the Complaint can be construed to assert allegations against Harleysville to which a response is required, Harleysville Worcester admits only that it issued the insurance policy bearing number CMB063594R for the period of October 1, 2015 to October 1, 2016 (the “Harleysville Worcester Policy”), the terms of which speak for themselves. To the extent the allegations contained in Paragraphs 33 and 34 of the Complaint vary from the terms of the Harleysville Worcester Policy, the allegations are denied. 35. The allegations contained in Paragraph 35 of the Complaint constitute legal argument and other conclusions as to which no response is required. To the extent that Paragraph 35 of the Complaint can be construed to assert allegations against Harleysville to which a response is required, Harleysville Worcester admits only that it issued the Harleysville Worcester Policy, the terms of which speaks for itself. To the extent the allegations contained in Paragraph 35 of the Complaint vary from the terms 5 5 of 12 FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018 of the Harleysville Worcester Policy, the allegations are denied, as is the allegation that Plaintiffs are additional insureds under the Harleysville Worcester Policy. 36-38. The allegations contained in Paragraphs 36 through 38 of the Complaint constitute legal argument and other conclusions as to which no response is required. To the extent that Paragraphs 36 through 38 of the Complaint can be construed to assert allegations against Harleysville to which a response is required, the allegations are denied. 39. The allegations contained in Paragraph 39 of the Complaint constitute legal argument and other conclusions as to which no response is required. To the extent that Paragraph 39 of the Complaint can be construed to assert allegations against Harleysville to which a response is required, Harleysville admits only that it has not defended or indemnified Plaintiffs in the Underlying Action, and denies any remaining allegations. C. Plaintiffs’ Alleged Damages. 40-41. The allegations contained in Paragraphs 40 and 41 of the Complaint constitute legal argument and other conclusions as to which no response is required. To the extent that Paragraphs 40 and 41 of the Complaint can be construed to assert allegations against Harleysville to which a response is required, the allegations are denied. AS AND FOR A FIRST CAUSE OF ACTION 42. Harleysville repeats each and every response contained in the preceding paragraphs as though set forth at length herein. 6 6 of 12 FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018 43-51 The allegations contained in Paragraphs 43 through 51 of the Complaint are not directed at Harleysville, and therefore no response is required. To the extent Paragraphs 43 through 50 assert allegations against Harleysville to which a response is required, the allegations are denied. AS AND FOR A SECOND CAUSE OF ACTION 52. Harleysville repeats each and every response contained in the preceding paragraphs as though set forth at length herein. 53-56. The allegations contained in Paragraphs 53 through 56 of the Complaint constitute legal argument and other conclusions as to which no response is required. To the extent Paragraph 53 through 56 can be construed to assert allegations against Harleysville to which a response is required, the allegations are denied. AS AND FOR A THIRD CAUSE OF ACTION 57. Harleysville repeats each and every response contained in the preceding paragraphs as though set forth at length herein. 58. The allegations contained in Paragraph 58 of the Complaint constitute legal argument and other conclusions as to which no response is required. To the extent Paragraph 58 can be construed to assert allegations against Harleysville to which a response is required, Harleysville is without knowledge or information sufficient to form a belief as to the truth of the allegations. 59-61. The allegations contained in Paragraphs 59 through 61 of the Complaint constitute legal argument and other conclusions as to which no response is required. To 7 7 of 12 FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018 the extent Paragraphs 59 through 61 can be construed to assert allegations against Harleysville to which a response is required, the allegations are denied. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiffs do not qualify as a named insured, insured or additional insured on the Harleysville Policies at issue, and as a result, Plaintiffs have no standing to assert any claim against Harleysville. SECOND AFFIRMATIVE DEFENSE The claims for which Plaintiffs seek coverage from Harleysville are not covered under the terms, conditions and exclusions to the Harleysville Policies at issue in this matter. THIRD AFFIRMATIVE DEFENSE Any obligations that Harleysville owes Plaintiffs with regard to the claims asserted against them in the Underlying Action are limited by the terms, conditions and exclusions to the Harleysville Policies at issue in this matter. FOURTH AFFIRMATIVE DEFENSE Harleysville’s denial of coverage to Plaintiffs is timely and effective. FIFTH AFFIRMATIVE DEFENSE Insurance Law § 3420 is inapplicable to Plaintiffs’ claims for coverage under the Harleysville Policies at issue in this matter. SIXTH AFFIRMATIVE DEFENSE Coverage is not triggered under the Harleysville Policies because the alleged injuries were caused by Plaintiffs’ own acts or omissions. 8 8 of 12 FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018 SEVENTH AFFIRMATIVE DEFENSE Any coverage available to an additional insured under the Harleysville Policies at issue would be limited to the additional insured’s liability for injuries to the extent the injuries were proximately caused by the acts or omissions of the named insured. EIGHTH AFFIRMATIVE DEFENSE Coverage under the Harleysville Policies is specifically excluded to the extent that the claim(s) arise(s) out of liability assumed/incurred by an insured under a contract or agreement. NINTH AFFIRMATIVE DEFENSE Plaintiffs’ alleged damages, if any, have been caused by the acts or omissions of Plaintiffs and/or third persons over whom Harleysville has or had no control or responsibility, and/or other circumstances for which Harleysville is not responsible. TENTH AFFIRMATIVE DEFENSE Plaintiffs are not entitled to additional insured coverage for their independent acts of negligence. ELEVENTH AFFIRMATIVE DEFENSE Plaintiffs are not entitled to additional insured coverage under the Harleysville Policies to the extent that a consolidated insurance program or other wrap-up insurance was in place for the project which gave rise to the Underlying Action. TWELFTH AFFIRMATIVE DEFENSE The Complaint is barred by the equitable doctrines of waiver, estoppel and/or laches. 9 9 of 12 FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018 THIRTEENTH AFFIRMATIVE DEFENSE Plaintiffs failed to perform obligations concerning conditions precedent and/or subsequent for coverage under the Harleysville Policies at issue in this matter. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiffs failed to provide Harleysville with complete and accurate information. FIFTEENTH AFFIRMATIVE DEFENSE Plaintiffs failed to provide timely notice of the occurrence or suit as soon as practicable. SIXTEENTH AFFIRMATIVE DEFENSE Any duty of Harleysville to reimburse or to indemnify Plaintiffs with respect to any claim or action is subject to the deductible and the applicable limits of liability, including aggregate limits, contained in the Harleysville Policies at issue in this matter. SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiffs are not entitled to a trial by jury as to its claims against Harleysville. EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred because at all times, Harleysville acted in compliance with and pursuant to all applicable statutes, contracts, industry standards and instructions. NINETEENTH AFFIRMATIVE DEFENSE The language of the Harleysville Policies at issue in this matter is clear and unambiguous. 10 10 of 12 FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018 TWENTIETH AFFIRMATIVE DEFENSE Coverage for any claims asserted against Plaintiffs is barred or limited on the grounds that, pursuant to the “Other Insurance” clauses in the Harleysville Policies at issue in this matter, the Harleysville Policies provide coverage that is excess over any other valid and collectible insurance, or shares equally with such insurance. TWENTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs are not entitled to damages beyond those covered by the Harleysville Policies at issue in this matter. TWENTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs’ claims should be dismissed to the extent Plaintiffs have failed to mitigate their damages, including, but not limited to, by seeking other coverage available to Plaintiffs under any other insurance policy, or indemnity available to the Plaintiffs by contract. TWENTY-THIRD AFFIRMATIVE DEFENSE Harleysville owes no duty to Plaintiffs. TWENTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are not ripe for adjudication because no determination has been made as to the alleged negligence in the Underlying Action. TWENTY-FIFTH AFFIRMATIVE DEFENSE Regarding Plaintiffs’ claims against Harleysville for any costs incurred relating to the Underlying Action, these costs were made without Harleysville’s prior knowledge, approval, and consent. Thus, Plaintiffs have breached a condition precedent under the Harleysville Policies at issue in this matter. 11 11 of 12 FILED: NEW YORK COUNTY CLERK 11/26/2018 09:58 AM INDEX NO. 154825/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/26/2018 TWENTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs’ Complaint does not describe the claims made by Plaintiffs with sufficient particularity to enable Harleysville to determine what defenses (including defenses based on the terms, conditions and/or exclusions to the Harleysville Policies at issue in this matter) it may have in response to Plaintiffs’ lawsuit. Harleysville therefore reserves the right to assert all defenses which may be pertinent to the Plaintiffs’ Complaint once the precise nature of such claims is ascertained through discovery. WHEREFORE, Harleysville demands judgment and requests that the Court (i) dismiss Plaintiffs’ Complaint with prejudice as against Harleysville; (ii) award Harleysville attorney’s fees and costs of suit; and (iii) grant Harleysville such other relief as the Court shall deem equitable and just. RIKER, DANZIG, SCHERER, HYLAND & PERRETTI LLP 500 Fifth Avenue Suite 4920 New York, New York 10110 (212) 302-6574 Attorneys for Defendants, Harleysville Insurance Company of New York and Harleysville Worcester Insurance Company By: /s/ Lance J. Kalik Dated: Morristown, NJ Lance J. Kalik November 26, 2018 5000648v2 12 12 of 12