The following papers read on these motions:^[FN1]

Archstone Motion for Partial Summary Judgment (Seq. No. 20) with Archstone-Henderson Affirmation and Exhibits1

Archstone Rule 19A Statement2

Archstone Memorandum of Law3

Archstone-Henderson Reply Affirmation and Exhibits4

Archstone Reply Memorandum of Law5

Archstone Responses to Cross-Movants' Rule 19A Statements6

Archstone-Henderson Supplemental Affirmation Regarding Certificates of Insurance ("COI") and Exhibits7

Travelers Motion for Partial Summary Judgment (Seq. No. 21) with Travelers -Shiroma Affirmation and Exhibits8

Travelers Rule 19A Statement9

Travelers Memorandum of Law10

Travelers-Shiroma Reply Affirmation and Exhibits11

Travelers Responses to Cross-Movants Rule 19A Statements12

Federated Mutual's Cross-Motion (Seq. No. 23) with Rule 19A Statement, Federated-Desantis Affirmation, and Exhibits13

Federated Memorandum of Law14

Federated-DeSantis Reply Affirmation15

Federated-DeSantis Letter of Jan. 3, 2011 and Exhibits16

American States' Cross-Motion (Seq. No. 24) with American States-Fuerth Affirmation and Exhibits17

American States' Rule 19A Statement for its Cross-Motion18

American States' Responses to Archstone's Rule 19A Statement19

American States' Responses to Travelers' Rule 19A Statement20

American States' Memorandum of Law21

American States-Fuerth Reply Affirmation22

American States-Kaufman Supplemental Affirmation Regarding COI

Hartford Fire Insurance Company's Cross-Motion (Seq. No. 25) with Hartford Fire-Posner Affirmation and Exhibits23

Hartford Fire's Rule 19A Statement24

Hartford Fire's Response to Traveler's Rule 19A Statement25 [*2]

Hartford Fire's Response to Archstone's Rule 19A Statement26

Hartford Fire's Memorandum of Law27

Hartford Fire's Reply Memorandum28

Hartford Fire Response to Archstone's Application Regarding COI29

Zurich Cross-Motion (Seq. No. 26) with Zurich-Kinney Affirmation and Exhibits30

Zurich Responses to Travelers' and Archstone's Rule 19A Statements and Rule 19A Counterstatement31

Zurich Memorandum of Law32

Zurich Reply Memorandum33

Erie Insurance Exchange Cross-Motion (Seq. No. 27) with Responses to Travelers' and Archstone's Rule 19A Statements and Rule 19A Counterstatement, Erie-Goode Affirmation, and Exhibits34

Erie Amended Memorandum of Law35

Erie Reply Memorandum36

Erie-Goode letter of January 13, 201137

Delos Cross-Motion (Seq. No. 28) with Delos-Butler Affirmation and Exhibits38

Delos Memorandum of Law39

Delos-Butler Reply Affirmation40

Delos-Butler letter of December 29, 201041

Delos-Butler letter of March 1, 201142

Merchants Mutual Cross-Motion (Seq. No. 29 ) with Merchants-Krawczyk Affirmation and Exhibits43

Merchants-Donnelly Affirmation in Opposition to Archstone44

Merchants-Donnelly Affirmation in Opposition to Travelers45

Merchants Responses to Travelers' and Archstones' Rule 19A Statements and Its Rule 19A Counterstatement46

Merchants Memorandum of Law47

Merchants and American European Donnelly letter of Jan. 13, 2011 and Exhibits48

Merchants and American European Donnelly Affirmation in Opposition to Travelers49

Merchants Mutual-Donnelly Reply Affirmation in Opposition to Archstone50

Merchants Mutual and American European Donnelly Supplemental Affirmation Regarding Certificates of Insurance51

American European Cross-Motion (Seq. No. 30) with American European-Krawczyk Affirmation and Exhibits52

American European-Donnelly Affirmation in Opposition to Travelers53

American European-Donnelly Affirmation in Opposition to Archstone54

American European Responses to Archstone's and Travelers' Rule 19A Statements and Its Rule 19A Counterstatement55

American European-Donnelly Reply Affirmation in Opposition to Archstone56

Everest Cross-Motion (Seq. No. 31) with Everest-Odelson Affirmation and Exhibits57

Everest Memorandum of Law58

Everest-Odelson Reply Affirmation59

Everest-Odelson letter of January 13, 201160 [*3]

Everest-Odelson Supplemental Affirmation Regarding COI61

ACE American Cross-Motion (Seq. No. 32) with ACE American-Cummings Affirmation and Exhibits62

ACE American Memorandum of Law63

ACE American's Responses to Archstone's and Travelers' Rule 19A Statements and Its Rule 19A Counterstatement64

ACE American Reply Memorandum of Law65

Continental Casualty Cross-Motion (Seq. No. 33) with Continental Casualty-Vigliano Affirmation and Exhibits66

Continental Casualty Memorandum of Law67

Continental Casualty-Vigliano Reply Affirmation68

Continental Casualty-Vigliano letter of January 13, 201169

Ohio Casualty Cross-Motion (Seq. No. 34) with Ohio Casualty-Spira Affirmation and Exhibits70

Ohio Casualty's Responses to Travelers' Rule 19A Statement and Exhibits71

Ohio Casualty's Responses to Archstone's Rule 19A Statement and Exhibits72

Ohio Casualty's Rule 19A Statement in Support of Its Cross-Motion73

Ohio Casualty Memorandum of Law74

Ohio Casualty-Spira Reply Affirmation75

Ohio Casualty-Spira letter of January 13, 2011 and Exhibits76

Ohio Causalty-Spira Supplemental Affirmation Regarding COI77

Farm Family Cross-Motion (Seq. No. 35) with Farm Family-Eldridge Affirmation and Exhibits78

Farm Family-Kohane Affirmation and Exhibits79

Farm Family Responses to Archstone's Rule 19A Statement80

Farm Family Responses to Travelers' Rule 19A Statement81

Farm Family Rule 19A Statement82

Farm Family Memorandum of Law83

Interstate-Breen Affirmation in Opposition and Exhibits84

Interstate Responses to Archstone's Rule 19A Statement85

Interstate Responses to Travelers' Rule 19A Statement86

Interstate Memorandum of Law87

Interstate-Breen Sur-reply Affirmation and Exhibits88

Interstate-Breen Supplemental Affirmation Regarding COI89

Liberty Mutual-Viola Affirmation in Opposition and Exhibits90

Liberty Mutual Responses to Archstone Parties' Rule 19A Statement91

Liberty Mutual Responses to Travelers' Rule 19A Statement92

Liberty Mutual Memorandum of Law93

Liberty Mutual-Coel Supplemental Affidavit Regarding COI94

Navigators-Minetto Affirmation in Opposition95

Navigators Responses to Archstone's Rule 19A Statement96

Navigators Responses to Travelers' Rule 19A Statement97

Navigators Corrected Memorandum of Law98 [*4]

Navigators-Minetto letter of January 13, 201199

Navigators-Minetto Supplemental Affirmation Regarding COI100

Pennsylvania National-Walker Affirmation in Opposition101

Pennsylvania National Responses to Archstone's Rule 19A Statement102

Pennsylvania National Responses to Travelers' Rule 19A Statement103

Pennsylvania National Memorandum of Law104

QBE-Maeglin Affirmation in Opposition105

QBE Responses to Archstone's Rule 19A Statement106

QBE Responses to Travelers' Rule 19A Statement107

QBE Memorandum of Law108

QBE-Maeglin Sur-reply Affirmation109

QBE-Maeglin letter of January 13, 2011110

Scottsdale Responses to Archstone's Rule 19A Statement and Exhibits111

Scottsdale Respones to Travelers' Rule 19A Statement and Exhibits112

Scottsdale-Kaminska Affirmation in Opposition113

Scottsdale-Kaminska Sur-reply Affirmation114

Scottsdale-Kaminska letter dated January 13, 2011115

1. General Discussion

Most insurers include language that requires an insured to provide notice of any covered event "as soon as practicable." The insurer must in turn provide timely notice of disclaimer: "An insurer must give written notice of disclaimer on the ground of late notice as soon as is reasonably possible after it first learns of the accident or of grounds for disclaimer of liability,' and failure to do so precludes effective disclaimer.'" (Matter of Firemen's Fund Ins. Co. v. Hopkins, 88 NY2d 836, 837 [1996]; see also General Acc. Ins. Gr. v. Cirucci, 46 NY2d 862 [1979]).

"The obligation to give notice as soon as practicable' of an occurrence that may result in a claim is measured by the yardstick of reasonableness." (Brooks v. Zurich-American Ins. Group, 300 AD2d 176, 178 [1st Dept. 2002]). There are no iron-clad rules for how much delay constitutes late notice, and the inquiry is heavily dependent on questions of fact. (Mighty Midgets, Inc. v. Centennial Ins. Co., 47 NY2d 12, 19-21 [1979]). Rather, "when an insured complying with its duty to use due diligence in investigating potential claims against it would believe from the information available that its policy would be involved, the notice obligation arises." (Christiania Gen. Ins. Corp. of NY v. Greater Am. Ins. Co., 979 F.2d 268, 275-76 [2d Cir. 1992] [applying New York law]; see also Home Mut. Ins. Co. v. Presutti, 78 AD2d 968, 969 [4th Dept. 1980], Paramount Ins. Co. v. Rosedale Gardens, 293 AD2d 235, 239 [1st Dept. 2002]).

A policy is implicated when the insured learns of an actual loss or injury covered by the policy, and not when the insured learns only of a potentially dangerous condition. (Chama Holding Corp. v. Generali-US Banch, 22 AD3d 443 [2d Dep't 2005]; see generally 70A NY [*16]Jur2d Insurance § 1989). Similarly, "[w]hen the facts of an occurrence are such that an insured acting in good faith would not reasonably believe that liability on his part will result," (Merchants Mut. Ins. Co. v. Hoffman, 56 NY2d 799 [1982]), the contractual duty to give notice does not arise until the insured knows that a claim is being made due to that occurrence. (Id.)

Before enactment of Insurance Law § 3420(a)(5) [effective January 17, 2009], New York courts have held that an insured's failure to provide timely notice of an occurrence is a material breach of the insurance contract, such that it vitiates coverage. (See Security Mut. Ins. Co. of NY v. Acker-Fitzsimons Corp., 31 NY2d 436 [1972]). In contrast, the home jurisdiction of several carriers who challenge Archstone's or Tocci's notice, require that an insurance carrier show prejudice in order to establish that late notice is a material breach of the insurance contract. (See Allstate Ins. Co. v. State Farm Mut. Auto Ins. Co., 363 Md. 106, 122 [2001], State Farm Fire and Cas. Co. v. Walton, 244 Va. 498, 504 [1992], Transportes Ferreros de Venezuela II CA, 239 F.3d 555, 562 [3d Cir. 2001] [applying New Jersey law], Struna v. Concord Ins. Svcs., Inc., 11 SW3d 355, 359 [Tex. App. 1st Dist. 2000], Country Mut. Ins. Co. v. Livorsi Marine, Inc., 222 Ill.2d 303, 317 [2006], Vanderhoff v. Harleysville Ins. Co., 997 A2d 328, 333 [Pa. 2001], Aetna Cas. & Sur. Co. v. Murphy, 206 Conn. 409, 417-18 [1988]).

The differences between New York's no-prejudice rule and the prejudice rule of various carriers' home jurisdiction, would create a conflict of laws requiring an analysis to determine which law applies, since a prejudice rule and a no-prejudice rule are not generally reconcilable. However, the conflict only arises if an insured has in fact failed to provide notice of occurrence "as soon as practicable." Therefore, such an analysis is deferred until any determination is made that notice was not made "as soon as practicable."

2. November 2007 Notices to AI Carriers

Some time before any Tenant Actions were filed, Daniel C. Flannery of Tocci provided notice of occurrence to the AI carriers, and expressly demanded a defense of Archstone and Tocci from any related claims and losses. These letters from Mr. Flannery are dated sometime in November 2007 and state:

This letter shall constitute a demand for [you] to defend and indemnify Tocci Building Corp. of New Jersey, Inc. ( Tocci-NJ') and the owner of the Project, Archstone-Smith Operating Trust ( ASN') from any claims, losses, damages, costs, and expenses in connection with the defects and deficiencies alleged in ASN's November 21, 2007 letter to Tocci-NJ...

(Travelers-Shiroma Aff., Exs. 25-41; Travelers-Shiroma Reply Aff., Exs. 4, 8, 9). Out of all AI Carriers which contest notice, the following received this identically-worded letter, dated late November 2007: Delos f/k/a Sirius (Travelers-Shiroma Aff., Ex. 30), Farm Family (id., Ex. 33), Ohio Casualty (id., Ex. 38), Scottsdale (id., Ex. 41), Continental Casualty (Travelers-Shiroma Reply Aff., Ex. 8), and Pennsylvania National (id., Ex. 9). Merchants Mutual and American European formerly known as Merchants Mutual of New Hampshire, received an identically-worded letter, but it is dated December 18, 2007. (Id., Ex. 4).

The AI Carriers who contest that these letters were notice of occurrence from Archstone, do not contest Mr. Flannery's authority to speak on behalf of Archstone. Rather, those AI Carriers contend that these letters cannot be "deemed" notice from Archstone. (See Delco Steel Fabricators, Inc. v. Am. Home Assur. Co., 40 AD2d 647 [1st Dept. 1972] aff'd 31 NY2d 1014, [*17]Travelers Ins. Co. v. Volmar Const. Co., Inc., 300 AD2d 40 [1st Dept. 2002]). Such arguments miss the point that there is no need to "deem" Mr. Flannery's letter as anything other what it expresses to be. So long as the AI Carriers do not contest Mr. Flannery's authority, the letter by its very terms states that it provides notice and demands a defense on behalf of Archstone and Tocci. To this court's knowledge, the law does not forbid two insured parties from providing notice through the same document.Mr. Flannery's letters from November 2007 also attached a letter from Robert Crewdson, attorney for Archstone. (Travelers-Shiroma Reply Aff., Ex. 6). Mr. Crewdson's letter noted that Archstone had commissioned a forensic building expert in the prior month to investigate the extent of construction defects and water intrusion issues, and as a result, Archstone had learned that "[w]ater intrusion issues at the Project are pervasive and affect all residential buildings...." (Id.) Significantly, the letter acknowledged that Archstone would have to displace all tenants in order to address the water intrusion issues. The letter also identified various particular defects that can be linked to individual subcontractors, and finally, the letter invited Tocci and all liability carriers to a meeting to provide further information and opportunity to investigate the issues at the Project.

The first Tenant Actions were filed in December 2007. These were the Marchese (Archstone-Henderson Aff., Ex. 89), Francois (Archstone-Henderson Aff., Ex. 90), and DiGiovanna (Archstone-Henderson Aff., Ex. 92) complaints. Archstone filed its own action against Tocci and others in January 2008. (NYSCEF, Index. No. 601695/2009, Doc. No. 212-1).

The record establishes that all but five AI Carriers had received notice of occurrence from Archstone and Tocci in November 2007, and Merchants Mutual and American European were provided the same notice in December 2007. The notice letters informed the AI Carriers of the following: pervasive water-related damages and mold infestation were present at the Archstone Westbury Complex, all tenants would necessarily be displaced, and that liability for at least some of that litigation arose from the defective work of various contractors on the project, who are the AI Carriers' named insureds. Those AI Carriers which received the November 2007 letters, had notice well before the Tenant Actions or the Archstone Action were even filed, and they were invited to participate in the dialogue regarding investigation and settlement of all damages.

The November 2007 notice was made "as soon as practicable" after Archstone commissioned a forensics expert, and it discovered the extent of water intrusion issues and their cause. As to these AI Carriers, Tocci and Archstone complied with their duty to use due diligence in investigating potential claims against them and provided notice as soon as practicable after they learned that AI coverage by the subcontractors was implicated.

3. December 2007 Notice to Merchants Mutual and American European

There is little basis to argue that notice in December 2007 to Merchants Mutual and American European formerly known as Merchants Mutual of New Hampshire, was late as a matter of law. (Travelers-Shiroma Reply Aff., Ex. 4). In any case, these AI Carriers are unable to rely now on late notice, without more, because of their late disclaimer. There is no dispute that New York law applies as to these carriers. (Archstone reply m. p. 52). In New York, an insurer has a duty to provide timely notice of disclaimer, particularly if it denies coverage because of late notice. (Matter of Firemen's Fund Ins. Co. v. Hopkins, 88 NY2d 836, 837 [1996], First Fin. Ins. Co. v. Jetco Contracting Corp., 1 NY3d 64 [2003]).

Merchants Mutual and American European had received notice by letter dated December [*18]18, 2007, (Travelers-Shiroma Reply Aff., Ex. 4), and again by letter dated January 24, 2008 (Merchants-Krawczyk Aff., Ex. 6), and November 10, 2008. (Archstone-Henderson Aff., Ex. 102, Travelers-Shiroma Aff., Ex. 36). Yet Merchants Mutual and American European did not disclaimed coverage as to Tocci and Archstone until January 30, 2009. (Merchants-Krawczyk Aff., Ex. 8; American European-Krawczyk Aff., Ex. 9).

Because timeliness of notice is generally self-evident from the face a notice letter, courts look back to the time that the late notice was made, in order to measure the timeliness of an insurer's disclaimer for late notice. (First Fin. Ins. Co. v. Jetco Contr. Corp., 1 NY3d 64, 69 [2003]). The Court of Appeals has held that delays as short as 48 days without lawful explanation are late as a matter of law, and such late disclaimer would estop the insurer from relying on late notice as a ground for denying coverage. (First Fin. Ins., 1 NY3d at 70).

In this case, Merchant Mutual's and American European's disclaimers were over a year late as to the December 2007 notice letter, and even as to the November 2008 notice, the disclaimers were 81 days late. Merchants Mutual and American European have not offered any lawful explanation for their delay in disclaiming coverage. They only contend that Insurance Law § 3420(d) [effective Sep. 24, 2002 to Jan. 16, 2009] does not apply to Tocci or Archstone's notices. However, Insurance Law § 3420(d), before amendment effective January 17, 2009, has applied to commercial liability policies when any personal injury is alleged, even if such injury might be excluded from coverage. (See Osohowsky by Kacer v. Romaniello, 201 AD2d 473 [2d Dept. 1994]). In the underlying Tenant Actions, various complaints alleged personal injury from mold and water intrusion, and those allegations are "passed through"^[FN4] to the Archstone Action in the common law indemnity claims against Tocci. Therefore, Insurance Law § 3420(d) [effective Sep. 24, 2002 to Jan. 16, 2009] applies to Merchant Mutual's and American European's disclaimers of coverage as to Archstone and Tocci.

Merchant Mutual's and American European's late disclaimers estop these insurers from denying coverage at least on the ground of late notice. (First Fin. Ins. Co. v. Jetco Contracting Corp., 1 NY3d 64 [2003], Hunter Roberts Const. Group, LLC v. Arch Ins. Co., 75 AD3d 404 [1st Dept. 2010]).Although a late disclaimer might also estop an insurer from denying coverage on the basis of any exclusion (Cont. Cas. Co. v. Stradford, 46 AD3d 598 [2d Dept. 2007], see 70A NY Jur2d Insurance § 2049), Archstone and Travelers have not contended that any late disclaimers in this case would estop the AI Carriers from disclaiming coverage on the basis of exclusions in their policies.

4. American States' and Ohio Casualty's Evidentiary Submissions

American States and Ohio Casualty submit some deposition testimony and other evidence to suggest that Archstone or Tocci may have known of tenants' property damage prior to November 2007. The evidence indicates only that tenants made continuous complaints of water entering leaking through their windows and in some cases staining Archstone's Venetian blinds. (See Ohio-Spira Aff., Exs. 25-28; American States-Fuerth Aff., Exs. B-D, J-N). To the extent [*19]that an inference should be made that some tenants may have suffered property damage from those leaks, American States and Ohio Casualty do not cite any case law that such circumstantial evidence may establish late notice so as to vitiate coverage. The law appears to be to the contrary. In cases where a landlord has received an order of abatement for lead paint, courts have held that knowledge of the presence of lead paint, without knowledge of actual injury, did not trigger the obligation to give notice. (Chama Holding Corp., 22 AD3d at 444-45, and cases cited therein). The court is similarly unconvinced that it must infer that Tocci or Archstone had knowledge of property claims against them, from knowledge of defective conditions that might lead to damage to personal property.

Archstone has objected to Ohio Casualty's and American States' submissions on the ground that an insurer may not rely on extrinsic evidence to deny coverage. (Archstone's Response to Ohio Cas. Rule 19A Statement; Archstone's Response to American States Rule 19A Statement). The issue of notice is a question of fact that is antecedent to any coverage question (Security Mut. Ins. Co. of NY v. Acker-Fitzsimons Corp., 31 NY2d 436 [1972]). It is not clear to what extent, if any, the judicial policy favoring quick resolution of the duty to defend would limit the use of circumstantial evidence on the question of timely notice. It is, however, clear that an insurer can deny coverage on grounds of late notice only to the extent that it specified those grounds in its disclaimer. (Matter of Firemen's Fund Ins. Co. v. Hopkins, 88 NY2d 836, 837 [1996], General Acc. Ins. Gr. v. Cirucci, 46 NY2d 862 [1979]).

Here, Ohio Casualty and American States have waived late notice as a ground to deny coverage. Ohio Casualty issued a disclaimer in response to Mr. Flannery's letter on September 24, 2008. (Ohio Cas.-Spira Aff., Ex. 21). That disclaimer did not state late notice as a ground for denying coverage. (Id.) Since Ohio Casualty had repudiated any coverage obligations it had by its September 2008 disclaimer, it could not "thereafter attempt to create other grounds for refusal to pay by demanding compliance by the insured with other incidental provisions of the policy with which it had not demanded compliance prior to its repudiation of liability." (Beckley v. Otsego County Farmers Co-op. Fire Ins. Co., 3 AD2d 190, 194 [3rd Dep't 1957]; State Farm Ins. Co. v. Domotor, 266 AD2d 219, 220 [2d Dep't 1999]). Thus, while Ohio Casualty did cite late notice in its disclaimer letter of January 26, 2009, (Ohio Cas.-Spira Aff., Ex. 23), this disclaimer could not create further grounds for refusal to pay by demanding compliance with other provisions that it had not previously enforced. In any case, that disclaimer did not allege that notice was late by November 2007 or that Archstone had reason to know of tenants' property damage since 2005.

American States has similarly waived late notice as a ground to deny coverage. Its letters dated December 9, 2008 (American States-Fuerth Reply Aff., Ex. A), May 8, 2009 (Id.), and October 1, 2009 (Id., Ex. C) do not state that either Archstone's or Tocci's notice of occurrence was late. Notice as to American States is discussed further below.

5. Notice as to American States and Federated Mutual*

During oral argument, Archstone and Travelers conceded that American States and Federated Mutual did not receive notice from Mr. Flannery in November or December 2007. Moreover, Archstone concedes in its brief that only the law of New York can apply to these three carriers. (Archstone reply m. p.52). The law of New York does not require a showing of prejudice to disclaim coverage when an insurer receives late notice of claim. (American Home Assur. Co. v. International Ins. Co., 90 NY2d 433 [1997]; cf. In re Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491 [2002]). However, insurer has a corresponding duty to provide timely [*20]notice of disclaimer, particularly if it denies coverage because of late notice. (Matter of Firemen's Fund Ins. Co. v. Hopkins, 88 NY2d 836, 837 [1996], First Fin. Ins. Co. v. Jetco Contracting Corp., 1 NY3d 64 [2003]). An insurer, moreover, may not later deny coverage on the ground of late notice unless it stated this ground in its disclaimer. (Id., General Acc. Ins. Gr. v. Cirucci, 46 NY2d 862 [1979]).

American States received notice of claim on behalf of Tocci regarding the Archstone Action in November 2008. (American States Rule 19-A Statement at ¶18). American States received notice of claim from Archstone in January 2009. (American States-Fuerth Reply Aff. at ¶ 14). American States first denied coverage to Tocci in a letter dated December 9, 2008, and it fully disclaimed coverage as to both Tocci and Archstone in a letter dated May 8, 2009 (American States-Fuerth Reply Aff. at ¶ 13). As already discussed, American States did not disclaim on the ground of late notice in any of these letters. (American States-Fuerth Reply Aff., Ex. A, B & C). Because it did not disclaim on the ground of late notice, it may not now rely on that ground to deny coverage. (Matter of Firemen's Fund, 88 NY2d at 837 [1996], First Fin. Ins.1 NY3d at 70).

Federated, against whom only Archstone asserts coverage, first received notice of an occurrence from Archstone through a letter dated December 2, 2008. (Archstone-Henderson Aff., Ex. 100). In response, Federated disclaimed coverage to Archstone by a letter dated January 22, 2009. (Federated-DeSantis letter of Jan. 3, 2011) Federated's disclaimer included late notice as among the grounds for denying coverage. (Id.) Because the first Tenant Actions were filed in December 2007, Archstone's notice to Federated in December 2008 is at least one year late. Archstone does not contend that Tocci's notice dated January 24, 2008 (Federated-DeSantis Aff., Ex. N), can be deemed notice from Archstone. Further, Archstone offers no explanation for the delayed notice to Federated. Therefore Archstone's delayed notice to Federated is late notice as a matter of law. (Cf. Travelers Ins. Co. v. Volmar Const. Co., Inc., 300 AD2d 40 [1st Dept. 2002]).

6. Notice as to Interstate

Interstate claims that it received late notice, because the November 2007 letter was addressed to its agent/broker (Travelers-Shiroma Aff., Ex. 34), and that the agent/broker failed in its duty to forward the notice to Interstate's claims department. When a broker does not forward a notice of claim to the carrier's claims department, the insurer might disclaim coverage if the broker is not an agent of the carrier and the notice provision in the policy explicitly requires that the notice of claim be forwarded to a particular entity, rather than "to us" or such similar ambiguous language. (Jeffrey v. Allcity Ins. Co., 26 AD3d 355 [2d Dep't 2006]). In this case, Interstate's notice provision does not specify who must be notified in the event of an occurrence, using only ambiguous language including "we are notified" or "notify us." (Interstate-Breen Sur-reply Aff., Ex. A at Section IV[2]). Thus, the notice to the broker at most creates an issue of fact. However, Interstate did not disclaim on the ground of late notice. (Interstate-Breen Sur-reply Aff., Ex. B). Therefore, Interstate may not rely now on the ground of late notice to deny coverage. (Matter of Firemen's Fund, 88 NY2d at 837 [1996], First Fin. Ins.1 NY3d at 70).

(B.) Periods of Coverage and Known or Continuing Loss Provisions

Regarding: American States; Continental Casualty; Everest; Liberty Mutual; Navigators; Ohio Casualty; Pennsylvania National [*21]

1. Navigators Policy for Houston Stafford

It is not disputed that Navigators insured Houston Stafford beginning on November 1, 2006, after Houston Stafford had terminated its operations for Tocci and Archstone on July 15, 2006. (Archstone reply m. p. 22). Archstone and Travelers contend that Navigators' Additional Insured endorsement providing coverage "for any person or organization for whom you are performing operations..." is ambiguous without the addition of the phrase "during the policy period." The Navigators policy provides coverage to an additional insured under a particular policy only if "you are performing operations" for that additional insured, and the "bodily injury or property damage occurs during the policy period." (Navigators-Minetto Aff., Ex. 5 "Navigators Policy" Section I.b.2). Any loss that may have occurred during the policy period beginning November 1, 2006 would not have arisen while Houston Stafford was performing operations for Archstone or Tocci. Alternatively, any covered "occurrence" that may have arisen while Houston Stafford was performing operations for Archstone or Tocci, would not have occurred during the policy period. Therefore, there can be no coverage for Archstone or Tocci from Houston Stafford's Navigators policy that began November 1, 2006. Since there can be no coverage for Archstone or Tocci under Navigators' policies issued to Houston Stafford, Navigators' other arguments need not be addressed.

2. Known or Continuing Loss Provisions

Everest, Ohio Casualty, and Pennsylvania National contend that a provision which excludes a "known loss" from coverage, bars coverage as to Tocci and Archstone in the Tenant Actions and the Archstone Action. These policies contain identical language, stating:

SECTION I COVERAGES

COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. Insuring Agreement

***

b. This insurance applies to "bodily injury" and "property damage" only if:

***

(3) Prior to the policy period, no insured listed under Paragraph 1 of Section II - Who is an Insured... knew that the "bodily injury" or "property damage" had occurred, in whole or in part. If such a listed insured... knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period will be deemed to have been known prior to the policy period.

***

c. "Bodily injury" or "property damage" will be deemed to have been known to have occurred at the earliest time when any insured listed under Paragraph 1. Of Section II — Who is an Insured... :

(1) Reports all, or any part, of the "bodily injury" or "property damage" to us or any other insurer;

(2) Receives a written or verbal demand or claim for damages because of the "bodily injury" or "property damage"; or

(3) Becomes aware by any other means that "bodily injury" or "property damage" has occurred or has begun to occur. [*22]

In addition, some AI Carriers contain an endorsement amending this language or creating an additional exclusion for continuing loss. For example, Everest issued an endorsement (ECG 21 501 05 00) that states similar language regarding a known loss, and indicating that a known loss is considered known regardless of "continuation during the policy period of the occurrence'" or regardless whether the " occurrence' that caused such bodily injury' or property damage, [sic] causes new or additional bodily injury' or property damage' during the policy period."

The periods of coverage from Ohio Casualty for Apro Construction Group, include 8/8/04 to 8/8/05, 8/8/05 to 8/8/06, and 8/8/06 to 8/8/07. (Archstone-Henderson Aff. ¶¶ 47-49, Exs. 20-22). The periods of coverage from Everest for Stat Fire Suppression, include 8/8/04 to 8/8/05, 8/8/05 to 8/8/06, 8/8/06 to 8/8/07and 8/8/07 to 8/8/08. (Archstone Henderson Aff. ¶¶ 92-95, Exs. 65-68). The earliest that Ohio Casualty and Everest contend Archstone or Tocci knew of any water intrusion issues, let alone damage to any tenants' personal property, is sometime in 2005. Assuming at this point that the "known loss" exclusion might apply on the facts, both Everest and Ohio Casualty provided coverage during and prior to 2005; and so, the "known loss" exclusion does not eliminate coverage under at least some of Everest or Ohio Casualty's policies. Ohio Casualty and Everest may therefore be subject to a duty to defend Archstone or Tocci, despite any application of their "known loss" exclusions.

The periods of coverage from Pennsylvania National for Mid Atlantic Stone, include only 3/28/06 to 3/28/07 and 3/28/07 to 3/28/08. (Archstone-Henderson Aff. ¶¶ 78-79, Exs. 51-52). Therefore, there is a possibility that coverage might be barred by Pennsylvania National's "known loss" exclusion, if in fact Archstone or Tocci knew of tenants' personal injuries and property damage before March 28, 2006.^[FN5] There is no dispute among the parties that this "known loss" provision is an exclusionary clause or an exclusion, even though it is not described as such by the insurance contract. Thus, it is Pennsylvania Nationa's burden to disprove coverage under this provision and to do so only by the terms of the insurance contract and the allegations in the underlying complaint, since the duty to defend is at issue. (Seaboard Curety Co. v. Gillette Co., 64 NY2d 304 [1984], Fitzpatrick v. Am. Honda Motor Co., 78 NY2d 61, 65-66 [1991]). While Pennsylvania National has submited some evidence suggesting that Archstone and Tocci knew by late 2005 that there was a pattern of water leaks from around windows in many apartments, such evidence does not meet Pennsylvania National's heavy burden to disprove coverage by relying only on the terms of the policy and Complaint allegations.

Because of the judicial policy for quick resolution of disputes involving the duty to defend, an insurer may not generally go beyond the pleadings or the terms of its policy to prove that an exclusionary clause bars coverage for the defense of an insured. (Petr-All Petr. Corp. v. Fireman's Ins. Co. of Newark, NJ, 188 AD2d 139 [4th Dept. 1993]). To overcome this judicial policy and the four corners rule, Pennsylvania National's "known loss" provision is quite precise in setting out when an insured "knows" that bodily injury or property damage has occurred: [*23]when the insured reports the loss to the insurance carrier, when there is a written or verbal demand or claim, or when the insured learns through "any other means"—that is, a source beside written or verbal demand—that " bodily injury' or property damage' has occurred or has begun to occur. Here, Pennsylvania National has not submitted any documentary evidence to show that Archstone or Tocci had received any written or verbal demand by tenants for bodily injury or property damages. Neither has it offered evidence of any other source advising Archstone or Tocci that the tenants had suffered personal injury or property damage. Instead, Pennsylvania National has submitted only evidence of tenant "work order" complaints that water was entering through their windows, and circumstantial evidence that a pattern of water intrusion issues had developed by late 2005. This is not evidence of a written or verbal demand, claim, or other similar source, which may have informed Archstone or Tocci of any property damage or bodily injury to the tenants.

3. Liberty Mutual's Prior Damage Exclusion in Its Policy to Superseal

The period of coverage from Liberty Mutual's policy to Superseal includes only 7/1/07 to 7/1/08 (Archstone-Henderson Aff. at ¶ 102, Ex. 75).^[FN6] This policy provides completed operations coverage but limits coverage for " bodily injury' or property damage' within the products-completed operations hazard' if the injury or damage first occurred prior to the effective date of the policy." The Tenant Actions allege that Archstone's tenants suffered property damage and personal injury at least untill November 2007, with some tenants continuing to reside at the Archstone Westbury Complex as late as March 2008. Therefore, there is a reasonable possibility that some tenants suffered different or new property damage or new personal injury after Liberty Mutual's policy to Superseal became effective.

4. Continental Casualty's "More than One Policy Period" Provision

The periods of coverage from Continental Casualty include 11/1/03 to 11/1/04, 11/1/04 to 11/1/05, and 11/1/05 to 11/1/06 for Houston Stafford (Archstone-Henderson Aff., Exs. 36-38), and 2/28/04 to 2/28/05 for Patti Roofing (Archstone-Henderson Aff., Ex. 57). Continental Casualty contends that an idiosyncratic provision in its policies provides coverage only if the damages sought to be covered under the insurance are discovered under a policy period and damages discovered after the policy period are only covered if they occurred during no more than one policy period, and did not continue after the policy period ended. (Continental Casualty mem. at 22-23).Although Continental repeatedly refers to the"clear language"of the provision in contending for its strict construction and enforcement, the provision's language is verbose, convoluted, self-contradicting, and ambiguous. It states:

Paragraph 1. Insuring Agreement of SECTION I—Coverage A—Bodily Injury and Property Damage Liability is replaced by the following:

1. Insuring agreement [*24]

***

b. This insurance applies to "bodily injury" and "property damage" only if:

***

(3) With respect to "bodily injury" or "property damage" that continues, changes or resumes so as to occur during more than one policy period, both of the following conditions are met:

(i) Prior to the policy period, no Authorized Insured knew that the "bodily injury" or "property damage" had occurred, in whole or in part; and

(ii) During the policy period, an Authorized Insured first knew that the "bodily injury" or "property damage" had occurred, in whole or in part.

For purposes of this Paragraph 1.b.(3) only, if (a) "bodily injury" or "property damage" that occurs during this policy period does not continue, change or resume after the termination of this policy period; and (b) no Authorized Insured first knows of this "bodily injury or "property damage" until after the termination of this policy period, then such first knowledge will be deemed to be during this policy period.

(Continental Casualty-Vigliano Aff., Ex. C).The judicial policy of interpreting ambiguous language against the drafter is intended to discourage precisely this sort of impenetrable language in adhesion contracts (see County of Broome v. Travelers Indemnity Company,58 NY2d 753 [1982]), yet this policy has obviously had doubtful success. Though the court is capable of dissecting and diagraming the clauses and each condition in the above-quoted language, it will not do so, at least while Continental Casualty itself has not contended in detail for its own plausible reading, and neither has it cited to any case that has interpreted this language. Simply put, this provision has no "plain and ordinary meaning" that this court would be bound to enforce, since it is not plain English. Such impenetrable language does not logically lend itself to any argument of a contractual bargain or parties' reasonable expectations.Language in a contract is ambiguous if there are two plausible competing interpretations for the same language, and both interpretations are reasonable. The language referring to "property damage... that continues, changes or resumes during more than one policy period" plausibly refers only to a particular area of "property damage," which starts then continues, or it starts, stops, then resumes. Thus, property damage, even of the same type, that occurs in a new area or to some different personal property, would be "new" property damage, rather than property damage that starts and continues, or starts, stops, and then resumes. The allegations in the underlying complaints do not allege in their entirety only damage to some particular site on tenants' personal property, which suffered continuing damage throughout more than one of the policy periods. Because only the duty to defend is at issue, Continental Casualty has a duty to defend whenever there is a "reasonable possibility" of coverage.

In any case, even under Continental Casualty's reading, which presumably lumps all damage to any one tenant's personal property as continuing damage, this provision is of doubtful applicability. There is a reasonable possibility that at least one tenant in the tenant class actions suffered property damage or personal injury only during one of Continental Casualty's policy periods.

(C.) Provisions Regarding "Other Insurance"

Regarding: American States, Everest, Hartford Fire*, Scottsdale, Liberty Mutual, Interstate

[*25]Several AI Carriers contend that any coverage extended to Archstone or Tocci is excess coverage, and that their policy bars any duty to defend when the policy provides only excess coverage. Generally, "coverage for additional insureds [is] primary coverage unless unambiguously stated otherwise." (Pecker Iron Works of New York, Inc. v. Traveler's Ins. Co. 99 NY2d 391, 393 [2003]). Most AI carriers, including American States, contain the same provision in their policies regarding other insurance and priority of coverage:

SECTION IV— COMMERCIAL GENERAL LIABILITY CONDITIONS

***

4. Other insurance

a. Primary Insurance

This insurance is primary except when b below applies...

b. Excess Insurance

This insurance is excess over:

(1) Any of the other insurance, whether primary, excess, contingent or on any other basis:

(a) That is Fire, Extended Coverage, Builder's Risk, installation Risk or similar coverage for "your work";

***

When this insurance is excess, we will have no duty under Coverages A or B to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit"...

No AI Carriers contend that the Archstone entities or Tocci have other Fire, Extended Coverage, Builder's Risk, installation risk or similar insurance. However, Scottsdale has amended this provision through an endorsement contained in all its policies to Knight Waterproofing, including 5/24/04 to 5/25/05 (Henderson Aff., Ex. 41), 5/24/05 to 5/24/06 (id., Ex. 42), 5/24/06 to 5/24/07 (id., Ex. 43) and 5/24/07 to 5/24/08 (id., Ex. 44). This provision states:

Condition 4. Other Insurance of SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS is deleted in its entirety and is replaced by the following

4. Other Insurance

a. Primary Insurance

This insurance is primary except when b. below applies.

b. Excess Insurance

This insurance is excess over any other insurance, whether primary, excess, contingent or on any other basis:

***

(4) That is valid and collectible insurance available to you under any other policy.

When this Insurance is excess, we will have no duty under Coverages A or B to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit"...

Throughout the policy, "you" or "your" is used to refer to the trade contractor who is the signer on the insurance contract and is the primary beneficiary. This use of "you" and "your" is particularly evident in the language of any additional insured endorsements, which distinguish [*26]between "you" as named insured and "any person or organization... whom you are required to add as an additional insured in this policy." In contrast, any provisions that plainly refer to all insured parties, including third-party beneficiaries of the insurance contract, specifically refer to "insured" or to "any insured listed under Section II — Who is an Insured," since any additional insured endorsements amend "Section II—Who is an Insured." For example, the "known loss" provision in the insurance contracts of several AI Carriers, refer to "when any insured listed under Paragraph b of Section II — Who is an Insured..." Moreover, the fact that Scottsdale's blanket additional insured endorsement contains a separate "excess insurance" provision, supports the inference that the provision quoted above was not intended to apply to any additional insured.

Scottsdale contains an "excess insurance" provision in its additional insured endorsement which reads:

Any coverage provided hereunder will be excess over any other valid and collectible insurance available to the additional insured whether primary, excess or contingent or on any other basis unless a contract specifically requires that this insurance be primary.

When this insurance is excess, we will have no duty under Coverage A or B to defend the additional insured against any "suit"...

(Scottsdale-Kaminska Aff., Ex. D). Every Trade Agreement or Subcontract contains a "Standard Amendment Rider to Standard Trade Contract." (Archstone-Henderson Aff., Exs. 3-16, 18). The Rider to the Trade Agreements refers to the "Insurance requirements set for this Agreement" and states in clause R.24:

The following language is required on certificates of insurance to be provided by the Trade Contractor to the Construction Manager for General Liability and Worker's Compensation Policies:

"Per project aggregate applies to General Liability Policy. Tocci Building corporation of New Jersey, Inc., the Owner and all other parties as required by Contract are named as Additional Insured on a Primary and Non Contributory Basis...(Id.) The Trade Agreements, including one signed by Knight Waterproofing (Scottsdale-Kaminsa Aff., Ex. A), require that additional insured coverage provided by Scottsdale and other AI Carriers be primary. Under Scottsdale's provision, a contract requires that Scottsdale's additional insured coverage be primary, and it is therefore so.

Interstate contends that its policy endorsement declaring that its policies will be excess to any "Owner Directed Insurance Program," means that Interstate's policies would be excess to any other policies purchased by Archstone and Tocci.^[FN7] Interstate's provision reads:

Certificates of Insurance were issued on Erie's policies to Mid Atlantic Stone, and those Certificates name "Tocci Building Corporation of New Jersey, ASN Roosevelt Center, LLC, and Archstone-Smith Operating Trust as additional insureds." (Henderson Aff., Exs. 55-56). Therefore, those entities are expressly named additional insureds under Erie's policies.

(B.) Blanket Endorsements Extending Coverage as Required in Written Contract

1. General Discussion and Standard Language

Most AI Carriers contain similar language in a blanket additional insured endorsement. One such typical additional insured endorsement reads:

WHO IS AN INSURED (Section II) is amended to include as an insured any person or organization, including any person or organization shown in the schedule above, (called additional insured) whom you are required to add as additional insured on this policy under a written contract or written agreement...

***

.3 Claims for damages because of bodily injury, sickness or disease or death of any person other than his employees;

***

.4 Claims for damages insured by usual personal injury liability coverage which are sustained... (2) by any other person;

.5 Claims for damages other than to the work itself because of injury to or destruction of tangible property, including loss of use resulting therefrom; [*29]

***

STANDARD AMENDMENT RIDER TO STANDARD TRADE CONTRACT

***

R.24INSURANCE: PROOF OF CONTINUING COVERAGE

***

The following language is required on certificates of insurance to be provided by the Trade Contractor to the Construction Manager for General Liability and Worker's Compensation Policies:

"Per project aggregate applies to General Liability Policy. Tocci Building corporation of New Jersey, Inc., the Owner and all other parties as required by Contract are named as Additional Insured on a Primary and Non Contributory Basis..."

The content of the Trade Agreements, including the quoted clauses, is not

disputed. The Trade Agreements required each subcontractor to procure additional insured coverage for Tocci and the "Owner." Most AI Carriers do not dispute that the "Owner" includes the Archstone parties that initiated the second Third-Party Action in this case. The "Owner" issue is addressed further below.

2. Written Agreement by the Named and Additional Insured

ACE American, Interstate, and the 2007-2008 Merchants Mutual and 2006-2007 American European policies contain a blanket additional insured endorsement that they contend does not add Archstone as an additional insured unless Archstone wrote a contract directly with the subcontractor that was insured on these policies. These policies contain the same relevant language. ACE American's policy, for example, states:Section II — Who Is An Insured is amended to include as an additional insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy...

Initially, Merchants Mutual and American European cannot rely on this language to relieve them entirely of any duty to defend. Merchants Mutual's policies prior to 2007 and American European's policies prior to 2006, contain the similar language to that discussed in the previous section, requiring only that some contract call for the additional insured coverage.^[FN9] Since these insurers do not contend that their named insured performed operations for Archstone and Tocci only during the policy periods for which the more restrictive language applies, there is a reasonable possibility that coverage exists under the prior policies. In other words, if Merchants Mutual and American European otherwise have a duty to defend under their prior policies, the more restrictive language in the later policies would not relieve them of a duty to defend.

ACE American and Interstate contain the more restrictive language in all the applicable policies. It is not clear to the court that the language was intended to require strict contractual [*30]privity between, say, any subcontractor and the Archstone entities.^[FN10] The language only requires that both, the insured subcontractor and Archstone, have manifested an agreement to procure additional insured coverage for Archstone, and that such manifestation of agreement be in writing. Even though some AI Carriers point to language in the Trade Agreements to the effect that no language will be interpreted to create a contractual relation between Archstone and any subcontractor, such language is only salutary in nature, intended to protect Archstone from some liability, such as vicarious liability for the acts of the subcontractors. The language, "when you and such person or organization have agreed in writing.." does not manifest a requirement that there be such a contractual relation, only that they have "agreed in writing." The subcontractors' and Archstones' mutual intent to procure additional insured coverage for Archstone under the subcontractors' liability coverage, is evidenced by the language in Sections 14.1.1 and R.24 of the Trade Agreements, as quoted previously. Moreover, the Trade Agreements contained a clause incorporating Archstone's Agreement with Tocci as it related to Archstone's requirements for the subcontractors:

17.8.1 The Contract Documents which constitute the entire Agreement between the Construction Manager and the Trade Contractor, are listed in Article 3 and, except for Modifications issued after execution of this Agreement are enumerated as follows

***

.2 Incorporated by reference: All obligations required of the Subcontractor as set forth in the Standard Forms of Agreement Between Tocci Building Corporation of New Jersey, Inc. and Archstone-Smith for Tocci Building Corporation of New Jersey, Inc. No. 0342. Copies are available upon request.

(Archstone-Henderson Aff., Exs. 3-16, 18). The Archstone-Tocci contract documents required that all subcontractors procure coverage for Archstone:

10.6 Insurance. All Subcontractors shall be required to maintain the insurance coverages required to be maintained by the Contractor under the Contract Documents...

***

EXHIBIT J

***

*** Owner shall be named as additional insured on all policies.

(Archstone-Henderson Aff., Ex. 2).

11.1.1 The Contractor shall purchase... such insurance as will protect the Contractor and Owner from claims set forth below...

***

.3 claims for damages because of bodily injury... of any person other than the Contractor's employees [*31]

***

.4 claims for damages insured by usual personal injury liability coverage which are sustained... (2) by any other person;

.5 claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use therefrom;

***

11.1.4.2 The Additional Insured endorsement shall state that the coverage afforded the Additional Insured shall be primary insurance for the Additional Insureds with respect to claims arising out of the operations performed by or on behalf of the Contractor...

(Interstate-Breen Aff., Ex. H). The incorporation in the Trade Agreements of Archstone's requirements for subcontractors, certainly manifests that the subcontractors and Archstone have agreed to procure coverage for Archstone, and that such agreement is evidenced in writing. Even in the absence of such incorporation, the language in Sections 14.1.1 and R.24 quoted previously, and the Certificates of Insurance, would at least create a question of fact whether the subcontractors and Archstone entities had manifested an intent to procure coverage for the Archstone entities and whether that intent was manifested in writing. (The Ins. Co. of NY v. Cent. Mut. Ins. Co., 47 AD3d 469 [1st Dept. 2008]). There is no such question of intent in this case. All parties had agreed that the Archstone "Owner" and Tocci would be additional insureds under the subcontractors' policies.

3. Endorsements in the Pennsylvania National and Ohio Casualty Policies

The policies of Pennsylvania National and Ohio Casualty also contain language in their policies which they contend requires contractual privity between any named insured and any additional insured. The relevant language reads: "any person or organization... with whom you are required in a written contract or agreement to name as an additional insured..." Pennsylvania National and Ohio Casualty do not cite any cases that have interpreted this language. On its face, the language is grammatically ambiguous, since the verb "require" does not normally take a predicate with the preposition "with." Thus, the clause, "with whom... you are required to name" might only be interpreted by the common use of "with" as "together with" or "along with. One might speculate that the language should have read, either "whom you are required... to name," or "with whom you have agreed... to name." Construing the language against the drafter, Tocci and the Archstone "Owner" are additional insureds under this language.

4. Hartford Fire's* and Liberty Mutual's* Policies to Superseal

These AI Carriers contend that Superseal was not required to name Tocci or Archstone as additional insureds. The Purchase Order which Superseal signed with Tocci contained the following language:4) Insurance - Supplier will supply evidence of insurance in accordance with Article 14 of the Contract Documents.

***

18) Thoroughly examine all contract documents. Failure to be acquainted with the entire set of Contract Documents will in no way relieve Trade Contractors from any obligations with respect to this work.

(Archstone-Henderson Aff., Ex. 17). Further, the Archstone-Tocci Contract provided: [*32]

10.6 Insurance. All Subcontractors shall be required to maintain the insurance coverages required to be maintained by the Contractor under the Contract Documents...

***

14.4 Insurance Requirements. The insurance required to be maintained by the Contractor under the General Conditions shall be written for not less than the limits set forth in Exhibit "J" hereto, or greater if required by law.

***

EXHIBIT J

***

*** Owner shall be named as additional insured on all policies.

(Archstone-Henderson Aff., Ex. 2).By the plain terms of the language quoted, Superseal was required to procure insurance coverage which named the "Owner" as an additional insured. Therefore, under Hartford Fire's and Liberty Mutual's blanket additional insured endorsements, the Archstone "Owner" qualifies as an additional insured.

5. Archstone "Owner" Which Is an Additional Insured As Required by ContractThe Trade Agreements define the "Owner" as "Archstone-Smith" in the cover page (Henderson Aff., Exs. 3-16, 18) and the Archstone-Tocci Agreement identifies the "Owner" as "Archstone-Smith Operating Trust," (id., Ex. 2). Some AI Carriers contend that because the contract documents identify the "Owner" as "Archstone-Smith" or "Archstone-Smith Operating Trust," other subsidiary entities of the Archstone-Smith Operating Trust, such as "ASN Roosevelt," are not entitled to any coverage for any costs they incurred in defending the Tenant Actions, apart from any costs incurred directly defending the Archstone-Smith Operating Trust.

Archstone seeks to introduce the Certificates of Insurance, which identify both the Archstone-Smith Operating Trust and ASN Roosevelt as additional insureds. However, a Certificate of Insurance which contains a clause informing the holder that it "confers no right upon the certificate holder... [and] does not amend, extend, or alter the coverage afforded..." is generally not conclusive proof of coverage, without more. (McGill v. Polytechnic University, 235 AD2d 400 [2d Dept. 1997]). Moreover, Archstone has not shown how the Archstone-Tocci Agreement or the various Trade Agreements are ambiguous as to the term "Owner," such that this court must look to any extrinsic evidence of intent. While Archstone cites to a case ^[FN11] which held that an "Owner" was an additional insured as identified in the Certificate of Insurance, that case is not precisely on point. There was no real dispute between the parties as to who was understood as the "Owner," and the issue arose only because of an omission in the contract documents which failed to define the "Owner," so that extrinsic evidence was necessary as a matter of contract interpretation. In this case, the "Owner" is clearly identified as "Archstone-Smith" and "Archstone-Smith Operating Trust," so that extrinsic evidence is not necessary to determine intent of the Trade Agreements or Archstone-Tocci contract. Moreover, the parties in this case dispute whether "Archstone-Smith Operating Trust" would include any other entities, such as "ASN Roosevelt Center LLC," or they argue that even if Archstone-Smith Operating Trust's status as an additional insured would include an entity of which it is a member, such as [*33]ASN Roosevelt Center LLC," their policies exclude coverage "with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations." (Hartford Fire mem. pp. 11-12). Finally, the Certificates of Insurance in this case were issued by Archstone's broker, rather than an agent of the insurers. Because of these factual issues, summary judgment as to any Archstone entities other than "Archstone-Smith Operating Trust" is inappropriate at this time, except as to those AI Carriers (discussed above in section III.A of this decision) which provided express additional insured coverage to "ASN Roosevelt LLC" and "Archstone-Smith Operating Trust."

(C.) Provisions Limiting Coverage to "Liability Arising out of Your Ongoing Operations" and Similar Language

1. General Discussion and Standard Language

Language extending coverage to an "additional insured" in commercial liability policies generally provides that coverage is provided to the additional insured "only with respect to liability arising out of your ongoing operations performed for that insured." Some variations on this language are not significant, and those insurers have not contended for any different interpretation of such minor variations. For example, Hartford Fire's* early policies to Clem's Ornamental and Superseal provide coverage to an additional insured "with respect to" the insured's operations or work, and Ohio Casualty's policies to Apro provide coverage to an additional insured for bodily injury or property damage "resulting from your ongoing operations performed for that insured."

New York cases applying this language have followed Consolidated Edison Co. of New York v. Hartf. Ins. Co. (203 AD2d 83 [1st Dep't 1994]).^[FN12] That case held that the focus of analysis in interpreting such language is "not ... the precise cause of the accident... But upon the general nature of the operation in the course of which the injury was sustained." (Id. at 84). This language was adopted by the Court of Appeals in Regal Constr. Corp. v. Nat'l Union Fire Ins. Co. of Pittsburg, PA (15 NY3d 34, 38 [2010]) and Worth Constr. Co. Inc. v. Admiral Ins. Co. (10 NY3d 411, 416 [2008]).

Before 2007, some cases in the Appellate Division were reaching the conclusion that the complaints which alleged liability against a qualifying additional insured, did not provide sufficient information to determine whether such additional insured's liability arose out of the operations of the named insured. (See, e.g., AIU Ins. Co. v. Am. Motorist Ins. Co., 8 AD3d 83 [1st Dept. 2004], 83 Kajima Const. Svcs., Inc. v. Caiti, Inc., 302 AD2d 228[1st Dep't 2003]. In BP Air Cond. Corp. v. One Beacon Ins. Group (8 NY3d 708 [2007]), however, the Court of Appeals held that "additional insured coverage is not contingent upon a liability finding [of the insured subcontractor]." (8 NY3d at 711). Because the duty to defend is broader than the duty to indemnify, it is sufficient that the facts in the underlying complaint suggest a reasonable possibility that there is "some causal relationship between the injury and the risk for which coverage is provided." (Regal Const., 15 NY3d at38). Indeed, the judicial policy favoring quick [*34]determination of the duty to defend calls a liberal interpretation of allegations in the underlying complaint. (See Rhodes, 67 AD3d at 882; see generally 70 NY Jur2d Insurance §§ 1628, 2079).

The decision of the Court of Appeals in Regal Const., supra, clarified the Court's view of the coverage afforded by a blanket additional insured endorsement. In Regal Const., an employee of Regal, a "prime contractor" which performed demolition and renovation operations for URS, slipped on a recently painted metal joist, which Regal alleged had been painted by employees of the construction manager URS. The underlying complaint only alleged negligence by URS. The Court of Appeals held that "[i]f a complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend. This standard applies equally to additional insureds and named insureds." (Regal, 15 NY3d at 37). The Court relied for its reasoning on the language from Consolidated Edison, supra, which indicates that courts will focus on the general nature of the operation when the accident was sustained, rather than speculate as to the precise cause of the accident. In Regal Const., the employment relation between the injured claimant and the named insured satisfied this basic causation standard. Finally, the Court clarified: "That the underlying complaint alleges negligence on the part of URS and not Regal is of no consequence, as URS's potential liability for LeClair's injury arose out of' Regal's operation." (Id., 15 NY3d at 39). Neither was it significant that the named insured, Regal, had not been named as a defendant in the underlying action. (Id., 15 NY3d at 37).

Only two reported New York cases decided after BP Air Cond., supra,appear to favor the Third-Party Defendants, Worth Constr. Co. Inc. v. Admiral Ins. Co. (10 NY3d 411 [2008]) and Stellar Mech. Svc. of NY v. Merchants Ins. of NH (74 AD3d 948 [2d Dept. 2010]). Both are exceptions to the general rule and are limited to their facts. As the First Department has explained, the facts of Worth, which it had reviewed at an intermediate level,are as follows (See Bovis Lend Lease LMB Inc. v. Garito Contracting, Inc., 65 AD3d 872, 874 [1st Dept. 2009]): The general contractor Worth sought contribution for its defense costs as an additional insured in the insurance policy of its subcontractor Pacific. In the underlying action against it, Worth had impleaded Pacific, alleging that the claims against Worth arose from Pacific's own negligence. However, Worth later conceded that its third-party claims against Pacific were without merit. It had thus been established as a matter of law that there was no factual or legal basis upon which Pacific's insurer would be required to indemnify the general contractor for any negligence by Pacific. (Worth Constr. Co. Inc. v. Admiral Ins. Co., 2005 WL 5749129, No. 118180/03 [NY Cty. Sup. Ct. June 6, 2005, J. Freedman], aff'd 10 NY3d 411 [2008]). On such limited facts, the Court of Appeals held that Pacific's insurer had no duty to defend the general contractor Worth.

The second case favoring the third-party defendants, Stellar, supra, is similarly limited to its facts. The Court noted that "Stellar and American established, prima facie, that Merchants was obligated to defend Stellar in the underlying action." (74 AD3d at 952). However, the general nature of the operations were such that there was no reasonable possibility that liability arose out of Serge's operations until the second amended complaint made such allegations, however groundless: "Those allegations suggested, for the first time, a reasonable possibility of coverage in the underlying action..." (Id.). Thus, the determining factor for coverage was the allegations, and not the fact that Serge was not a named defendant until the Complaint was amended a second time. Beyond those allegations, there was no reasonable possibility of coverage from the general nature of the operations: "Merchants submitted certain deposition [*35]testimony showing that Serge's employees did not create the opening through which [the injured claimant] fell, and were not responsible for protecting construction workers from falling through that opening." (74 AD3d at 953). Therefore, Stellar does not stand for the proposition cited, and it does not reverse the holding in Regal, supra, that it is of no significance for these types of cases, that the named insured is not a named defendant. (See also Lim v. Atlas Gem Erectors, Inc., 225 AD2d 304 [1st Dept. 1996], Structure Tone, Inc. v. Comp. Assembly Sys., 275 AD2d 603 [1st Dept. 2000], Bedford Cent. Sch. Dist. v. Comm. Union Ins. Co., 295 AD2d 295 [2d Dept. 2002]).

Finally, some AI Carriers suggested at oral argument that the language, "arising out of your ongoing operations," should be applied to exclude from coverage any damages which first occurred after a named insured's work for the additional insured had been completed. This argument has little weight, the AI Carriers did not argue this point in their papers, and in any case the court need not decide whether this language limits coverage to damages occurring during the course of the named insured's operations. As a matter of interpretation, bodily injury or property damage need not occur during the course of a trade contractor's "ongoing operations," for that bodily injury or property damage to "arise out of" that trade contractor's work or its ongoing operations performed for the additional insured. (Cf. Pardee Const. Co. v. Ins. Co. of the West, 77 Cal. App. 4th 1340 [Cal. App. 4th Dist. 2000]). For instance, defects or other dangerous conditions created during the course of ongoing operations, may cause bodily injury or property damage to occur at a later date. (See, e.g., Perez v. NYC Housing Auth., 302 AD2d 222 [1st Dept. 2003]). Moreover, the fact that many AI Carriers use similar "ongoing operations language," and separately exclude coverage for completed operations, strongly suggests that the word "ongoing" is not sufficient to limit coverage only to those damages that occur during the course of the contractor's operations. For example, even though Erie uses this very same language—"only with respect to liability arising out of your ongoing operations"—its endorsement also provides: "This insurance does not apply to*** bodily injury' or property damage' occurring after*** [a]ll work... has been completed." In other words, if such coverage for completed operations were already outside the scope of coverage provided by the "ongoing operations" language, there would be no need to exclude completed operations coverage by another provision. A more plausible interpretation of the phrase "ongoing operations," is that this language is analogous to language in other endorsements, which provides coverage to an additional insured "for whom you are performing operations" during a policy period. In any case, the court need not decide the legal interpretation of "ongoing operations," since the AI Carriers do not contest that their named insureds performed ongoing operations for Archstone and Tocci sometime during 2003 through 2007. And, as is discussed more fully in this court's discussion of the completed operations exclusion, the Tenant Actions allege that damages occurred between 2003 and 2007. The completed operations exclusion is discussed in section IV.A of this decision.

2. Coverage Limited to Liability Caused by Insured's Acts or Omissions

The policies of ACE American, American European, Merchants Mutual (only for the 1/28/07-1/28/08 policy period), Hartford Fire* (only for 2006-07 policy periods), Pennsylvania National, and Scottsdale (only for the 5/24/07 - 5/24/09 policy periods), substitute the "arising out of" language with:

Such person or organization is an additional insured only with respect to liability for bodily injury, property damage' or personal and advertising injury' caused, in whole or in part, by: [*36]

(1) your acts or omissions; or

(2) the acts or omissions of those acting on your behalf;

in performance of your ongoing operations for the additional insured

Pennsylvania National contends that this language was interpreted in a Pennsylvania case to mean that the coverage for the additional insured was limited to the additional insured's vicarious liability for the acts or omissions of the named insured. (See Lafayette College v. Selective Ins. Co., 2007 U.S. Dist. LEXIS 88001, No. 06-5459 [E.D.Pa. Nov. 29, 2007, J. Sanchez]). The language in the policy of that case, however, contained materially different language: "That person or organization is only an insured with respect to liability caused by your negligent acts or omissions at or from your ongoing operations..." In contrast, the language at issue here omits the word "negligent."

The phrase "caused in whole or in part" does not materially alter the general phrase, "arising out of," as such expression is contended to apply in this case. In other words, while "arising out of" might accept an employment relation as a sufficient causal nexus, (see Regal Const., 15 NY3 at 38), and the expression "caused in whole or in part by" might exclude employment as sufficient nexus, neither Archstone nor Travelers contend that the causal nexus bringing the allegations against them within coverage is an employment relation. Rather, Archstone and Travelers contend that the allegations against them implicate various subcontractors' acts or omissions as contributing, at least in part, directly to the damages that the tenants suffered. Such a casual nexus is more direct than "but for" causation. Thus, the case of Dale Corp. v. Cumberland Mut. Fire Ins. Co. (No. 09-1115, 2010 U.S. Dist. LEXIS 127126 [E.D. Pa. Nov. 30, 2010, J. O'Neill]), which interpreted the language, "caused in whole or in part** by your acts or omissions," as requiring a "proximate cause" nexus, does not particularly favor Pennsylvania National in this case, since Archstone and Travelers contend that a more direct causal nexus implicates the acts or omissions of Pennsylvania National's named insured. In any case, Dale is not binding precedent for Pennsylvania law, since it is an unpublished case from a federal court, and it acknowledges that its interpretation of this language was one of first impression

In sum, the causal connection required by, "caused in whole or in part... by your acts or omissions," is consistent with the causal connection that Archstone and Travelers contend applies to the trade contractors' contribution to the damages in the Tenant Actions. Therefore, the analytical approach to these policies will not vary from the analysis undertaken for those policies which contain the more common, "arising out of your ongoing operations" language.

3. Coverage Limited to Liability for Which Insured Can Be "Held Liable"

The language in American States' additional insured endorsement states:"The person or organization added as an insured by this endorsement is an insured to the extent that you [the named insured] are held liable due to: *** (2) your ongoing operations for that insured, whether the work is performed by you or for you." On first impression, this language is unclear and ambiguous. Without any additional insured endorsement, American States would have to pay any damages won by Archstone or Travelers, if they sued Metro Painting on any basis related to its ongoing operations for Archstone and Travelers. Therefore, the endorsement's language appears, on the one hand, to confer no separate coverage at all for an additional insured, and on the other hand, the endorsement purports to provide coverage to such additional insureds. On its [*37]face, the language is ambiguous and the ambiguity is interpreted against American States as drafter of its adhesion contracts. (Tishman Const. Corp. of NY v. CNA Ins. Co., 236 AD2d 211 [1st Dept. 1997]). This ambiguity is more egregious where, as here, the duty to defend is at issue. American States contends, in essence, that it provides no additional insured coverage, because some other action must determine that its named insured, Metro Painting, is liable directly to any plaintiff, or liable to Archstone or Tocci in indemnity. However, American States does not exclude coverage for defense in a lawsuit. American States' liability policies, therefore, provide "litigation insurance" to all insureds, and the policies afford any insured, such as Archstone and Tocci, "the expectation of receiving the right to an immediate defense by [American States] rather than being indemnified for defense costs at a later date." (BP Air Cond. Corp. v. One Beacon Ins. Grp., 33 AD3d 116, 124 [1st Dept. 2006], aff'd 8 NY3d 708 [2007]). This ambiguity in the context of the duty to defend must be interpreted against American States in order to protect Archstone's and Tocci's reasonable expectation of receiving their right to an immediate defense by American States.

American States' endorsement is ambiguous in other ways. The language requiring that "you [the named insured] are held liable," does not specify how or to whom the named insured must be "held liable." In other words: Must Metro Painting be a named or joined defendant in any covered action? Can a third-party or separate action for contractual or common law indemnity (or any other derivative or contingent liability) hold Metro Painting liable for the covered action? Or, can a determination in an action for insurance indemnity also hold Metro Painting liable? Neither does this additional insured endorsement specify on what legal basis the named insured must be "held liable." On the one hand, coverage could be limited to damages held to have been caused by Metro Painting actual negligence. On the other hand, the endorsement does not limit its additional insured coverage only to Metro Painting's liability for negligence. Thus, for example, Metro Painting's liability under its indemnity and hold-harmless agreements with Tocci and Archstone, would be sufficient to trigger coverage for Archstone and Tocci.^[FN13]

An impleader action against American States' insured, Metro Painting, exists, and a finding of this court on the question of insurance indemnity could also find that Metro Painting can be liable to Archstone and Tocci by reason of contractual indemnity. Therefore, a duty to defend Archtone or Tocci will lie under American States' policy "to the extent" that allegations in the Tenant Actions and the Archstone Action implicate the possibility that Metro Painting might be "held liable" to Tocci or Archstone in contractual indemnity or any other basis of contingent or derivative liability. [*38]

4. Coverage Limited to Liability Due to Insured's Negligence

Language contained in Continental Casualty's policies to Houston Stafford (Archstone-Henderson Aff., Exs. 36-37) and Patti Roofing (id., Ex. 57), affords coverage to an additional insured "solely for liability due to your negligence specifically resulting from your work' for the additional insured which is the subject of the written contract."The opinion in International Business Machines v. U.S. Fire Ins. Co. (17 Misc 3d 1108[A] [NY Cty. Sup. 2007]) interpreted similar language which required that the additional insured's liability be "caused by your negligent acts or omissions..."For such language, "it is not enough for [an additional insured] to show merely that the underlying action arose out of' [the named insured's] work, but rather they point to allegations or evidence of [the named insured's] negligent acts or omissions." (Id., 17 Misc 3d 1108 *6; cf. Boise Cascade Corp. v. Reliance Nat. Indem. Co. Inc., 129 F. Supp. 2d 41 [D. Me. 2001]). Therefore, Continental Casualty's policies to Houston Stafford and Patti Roofing will provide coverage to Archstone and Tocci for liability in the Tenant Actions and Archstone Action, only if those actions allege or imply actual negligence by their named insureds that caused the harm. Thus, allegations which only might imply that damages arose from Patti Roofing's operations, regardless of fault in negligence, are insufficient. Indeed, "negligence" has a very particular meaning of legal fault within the law of torts, and therefore only particular facts will support an inference that a particular complaint alleges liability for Archstone or Tocci, due to the named insured's legal fault in negligence. (Cf. Lafayette College v. Selective Ins. Co., 2007 U.S. Dist. Lexis 88001, No. 06-5459 [E.D.Pa. Nov. 29, 2007, J. Sanchez]).

Liberty Mutual's policy to Superseal similarly provides additional insured coverage only for damages "incurred as a result of some negligent act or omission of" Superseal. Therefore, Liberty Mutual's policy to Superseal will provide coverage to Archstone and Tocci, only if the underlying actions allege or imply actual negligence by Superseal, which resulted in imputed liability to Archstone or Tocci.

(D.) Method for Inferring Causal Nexus from Complaint Allegations

The Tenant Actions and Archstone Action in various ways allege negligent construction by subcontractors (as servants, agents or licensees of Archstone and Tocci), but the allegations are otherwise incomplete and provide only limited information to determine whose construction operations are relatable to the injuries and property damage claimed in the Tenant Actions and Archstone Action. Several AI Carriers contend that this court cannot make any inferences regarding whose construction operations are relatable to, or are implicated by allegations in the Tenant Actions or Archstone Action. However, various legal principles regarding the duty to defend suggest otherwise, at least where the additional insured endorsement provides coverage whenever a claimant's damages "arise out of" or are "caused in whole or in part by" the named insured's work. First, it is certainly clear that a named insured need not be a named defendant in the underlying suit, in order to trigger coverage for an additional insured under endorsements similar to those of the AI Carriers. (Regal, 15 NY3d at 37 & 39).^[FN14] Next, incomplete [*39]allegations cannot relieve an insurer from its defense obligations. (Ruder & Finn, 52 NY2d at 672; cf. Montrose Chem. Corp. v. Sup. Court, 6 Cal. 4th 287, 296, 861 P.2d 1153 [1993]). Also, any evidence provided to the insurer which supports coverage, can give rise to a duty to defend, despite incomplete allegations in the complaint. (Paul v. Grenier, 277 AD2d 681 [3d Dept. 2001]). Lastly, to the extent that the language, "arising out of" or "caused in whole or in part," suggests that a complaint must make specific accusations against a named insured, the language is ambiguous, and in accordance with common law interpretation of adhesion contracts, the ambiguity should be resolved in favor of the insured. (See Bedford Cent. Sch. Dist. v. Comm. Union Ins. Co., 295 AD2d 295 [2d Dept. 2002]). Put differently, if the AI Carriers intended to limit coverage only to cases where a claimant made express accusations against the named insured, or where the named insured was made a defendant, the AI Carriers could have so specified. For these reasons, the court will infer a causal nexus wherever it finds a reasonable possibility that liability arose out of or was caused in whole or in part by operations of a named insured, in accordance with the AI Carrier's blanket additional insured endorsements. (Travelers Indem. Co. v. Commerce & Indus. Ins. Co. of Canada, 28 AD3d 914 [3d Dept. 2006], Lim v. Atlas-Gem Erectors Co., Inc., 225 AD2d 304 [1st Dept. 1996], Turner Const. Co. v. Kemper Ins. Co., 198 Fed.Appx. 28, 2006 WL 2942525 [2d Cir. 2006]).

In this case, it is clear that beside the Complaints themselves, the court must examine at least the Trade Agreements, which are incorporated by reference in the AI Carriers' blanket additional insured endorsements. The blanket endorsements provide coverage to an additional insured only to the extent that a written agreement requires such coverage related to the named insured's operations. By defining additional insured coverage with relation to the named insured's "operations" or "work," undefined terms within the four corners of the policies, the court must by necessity look to the totality of the Trade Agreements which define the scope of such operations or work. (See William Floyd Sch. Dist. v. Maxner, 68 AD3d 982 [2d Dept. 2009], Bedford Cen. Sch. Dist. v. Comm. Union Ins. Co., 295 AD2d 295 [2d Dept. 2002], Travelers Indem. Co. v. Commerce & Indus. Ins. Co. of Canada, 28 AD3d 914 [3d Dept. 2006], Roberts Taylor & Sensabaugh Inc. v. Lexington Ins. Co., 2007 U.S. Dist. Lexis 65524, No. H-06-2197 [SD Tex. Sept. 5, 2007, J. Rosenthal]). Moreover, each AI Carrier presumably already examined the Trade Agreements for evidence of a requirement to procure additional insured coverage for Tocci and Archstone. Therefore, this court can confidently impute knowledge of these Trade Agreements to the AI carriers. This court will examine all Trade Agreements' terms that define the scope of a subcontractor's operations for which it was required to obtain additional insured coverage.

This court can also examine any independent evidence which was made known to the AI Carriers, and which may clarify whether any alleged damages "arise out of" or were "caused in whole or in party by" the operations of any subcontractors. Certainly in New York, permissible extrinsic evidence in a duty-to-defend analysis includes evidence of liability which an insured provides to its insurer. (Pahl v. Grenier, 277 AD2d 681 [3d Dep't 2000], Fitzpatrick v. American [*40]Honda Motor Co., Inc., 78 NY2d 61 [1991]). However, a putative additional insured cannot simply fabricate coverage with transparent, unsubstantiated allegations. (See Village of Newark v. Pepco Contractors, Inc., 99 AD2d 661 [4th Dept. 1984], aff'd 62 NY2d 772). The basis for additional insured coverage that the putative additional insured communicates to the insurer must be based on real evidence that raises the prospect of liability which arises out of the named insured.

The only evidence which Archstone and Travelers have submitted, regarding what information was made known to the AI Carriers, consists of Mr. Crewdson's November 2007 letter ("the Crewdson letter"). (Travelers-Shiroma Reply Aff., Ex. 6). This letter was attached to all November and December 2007 notice letters sent by Mr. Flannery to the AI Carriers. (Travelers-Shiroma Aff., Exs. 25-41; Travelers-Shiroma Reply Aff., Exs. 4, 8, 9). The Crewdson letter details various construction defects that were reportedly discovered by a forensic building expert and that are relatable to the widespread water intrusion issues in the Archstone Westbury complex. Archstone has re-alleged these defects in its "Affirmation of Interim Defects" that was filed on this case. Thus, the defects identified in the Crewdson letter were made known to the AI Carriers before any tenant litigation even began, they were ostensibly based on an available expert report, and all insurers were invited to investigate and examine the defects and damages in the Archstone Westbury Complex. For those reasons, this court can impute knowledge of facts stated in the Crewdson letter to the AI Carriers. No AI Carrier has disputed the validity of the forensic building expert's findings or whether any reported construction defects are related to the water intrusion and mold issues at the Archstone-Westbury complex.

Some AI carriers strenuously argue that their jurisdiction, such as Texas, does not permit any extrinsic evidence when determining the duty to defend, often citing Pine Oak Builders, Inc. v. Great American Lloyds Ins. Co. (279 SW3d 650 [Tex. 2009]). In fact, a close reading of Pine Oaks reveals that the decision addressed a very narrow problem of interpretation, and this problem of interpretation arose from the effect of two previous interpretations that appear unique to Texas: an interpretation that an "occurrence" includes property damage to the faulty work product itself (see Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 SW3d 1, 4-5, 16 [Tex. 2007]); and a "subcontractor exception" to the "your work" (or work/product) exclusion, which holds that this exclusion does not apply to warranty damages for faulty work, if the work was performed by a subcontractor of the insured, (Crow-Williams, I v. Federal Pacific Electric Co., 683 SW2d 523 [Tex App. Dallas 1984]). Therefore, the Pine Oak court was focused on the very narrow issue whether the party seeking coverage, whose faulty work product alone was alleged to have caused warranty-type damages, could create coverage for such warranty or contractual claims, by bringing in facts that would raise the "subcontractor exception" to the "your work" exclusion. The decision held that a contractor could not allege such extrinsic facts in order to circumvent the "your work" exclusion. Otherwise, Pine Oaks did not reverse the Texas Supreme Court's previous discussion of extrinsic evidence in GuideOne Elite Ins. Co. v. Fielder Road Baptist Church (197 SW3d 305 [Tex. 2006]). There, the Texas Supreme Court held only that an insurer could not use extrinsic evidence to deny coverage, and it suggested that extrinsic evidence was appropriate where it was not offered to contradict allegations in the underlying action. More recent cases have refused to clarify this issue any further, but have held that extrinsic evidence must always be examined for the duty to indemnify, and have thus created some anomalous results where an insurer may be held to a duty to indemnify, but not necessarily [*41]to any duty to defend. (D.R. Horton-Texas, Ltd. v. Markel Internat. Ins. Co., Ltd., 300 SW3d 740 [Tex. 2009], The Burlington Norther and Santa Fe Railway Co. v. National Union Fire Ins. Co of Pittsburg, PA, 2011 Tex. LEXIS 130, No. 10-0064 [Tex. Feb. 25, 2011]).

Because of the indeterminate state of Texas law on this issue, no clear conflict of laws emerges. To the extent that any clear law is suggested on the issue, Texas appears to admit extrinsic evidence on the issue of duty to defend, so long as the extrinsic evidence only goes to the issue of coverage and is not introduced to contradict allegations of the underlying complaint. (GuideOne Elite Ins. Co. v. Fielder Road Baptist Church 197 SW3d 305 [Tex. 2006]). Some intermediate courts in Texas are particularly open to extrinsic evidence when the coverage issues cannot be resolved due to incomplete or ambiguous allegations. (See, e.g., State Farm Fire & Cas. Co. v. Wade, 827 SW2d 448 [Tex. App. Corpus Christi 19992] pet. denied, Mid-Cont. Cas. Co. v. Safe Tire Disposal Corp., 16 SW3d 418 [Tex. App. Waco 2000] pet. denied, Martinez v. State Farm Lloyds, 2000 WL 35729222, No. 13-98-466-CV [Tex. App. Corpus Christi Aug. 31, 2000, J. Hinojosa]; see also Ooida Risk Retention Grp., Inc. v. Williams, 579 F3d 469 [5th Cir. 2009] [examining Texas law and concluding that Texas Supreme Court would support the limited exception to the "8 corners" rule reflected in these cases]). Moreover, the Texas insurers' arguments concerning the use of extrinsic evidence are belied by the fact that their own policies incorporate extrinsic documents by providing coverage "as required by written contract," and they rely on the undefined terms "operations" or "work" to determine coverage. This court's method for inferring some causation, by examining the allegations of each complaint and any facts made known to the AI Carriers in the Crewdson letter, is not in conflict with Texas law.

Pennsylvania National makes a related argument, that the four corners rule in Pennsylvania requires that a complaint must explicitly allege acts by a named insured, in order to implicate any liability that arises out of, or was "caused in whole or in part" by that named insured. However, Pennsylvania National relies on a case that is not binding precedent for the law of Pennsylvania. (See Dale Corp. v. Cumberland Mut. Fire Ins. Co., No. 09-1115, 2010 U.S. Dist. LEXIS 127126 [E.D. Pa. Nov. 30, 2010, J. O'Neill]). Moreover, the decision does not broadly support the proposition that Pennsylvania National asserts from it. The decision was narrowly focused on its interpretation that "caused in whole or in part" requires proximate causation from the named insured's negligence; so, the court concluded that the mere fact that the named insured had provided the aerial lift that was the situs of the claimants' accident, did not implicate any negligence or fault by the named insured, since the accident did not arise from alleged defects in the aerial lift.On the other hand, there is a possibility that the underlying complaint would have implicated the named insured's acts or omissions, even without actually identifying the named insured, by allegations that the aerial lift was itself defective.

Finally, this court believes it important to consider the fact that all subcontractors, Tocci, and Archstone, together entered into hold-harmless and indemnification agreements for any damages that might arise out of their construction operations for the Archstone Complex. This consideration is particularly relevant in applying additional insured endorsements that broadly provide coverage for damages "arising out of" or "caused in whole or in part by" the named insured's "operations" or "work." Indeed, the coverage afforded by an insurance policy must be understood with an eye to "common speech... and the reasonable expectation and purpose of the ordinary businessman." (Ace Wire & Cable Co. v. Aetna Cas. & Sur. Co., 60 NY2d 390, 398 [1983]). A blanket additional insured endorsement which provides broad and open-ended [*42]coverage to any damages "arising out of" or "caused in whole or in part by" the named insured's "operations" or "work," essentially allows the named insured and any entity for which it is performing operations, to define the terms of coverage by identifying the operations and responsibilities of the named insured. Thus, several cases suggest that the risk allocation and indemnification agreement between the parties is an important factor in determining the nature of the coverage afforded by the "arising out of your operations" language. For example, Travelers Indem. Co. v. Comm. & Indus. Ins. Co. of Canada, 28 AD3d 914 [3d Dept. 2006], considered the risk allocation and responsibilities of the named insured and putative additional insured, in order to determine whether the "operations" of the named insured as defined by contract, incorporated responsibility for the risk that had materialized in the underlying lawsuit.The Court of Appeal's decision in BP Air Cond. also interpreted a blanket additional insured endorsement by relying at least in part on the existence of a hold-harmless and indemnification agreement:

[T]he purchase order's indemnification/hold-harmless clause indicates that BP sought broad protection against any liability that may be attributable to Alfa's activities as insured by One Beacon... ***

Denying BP a defense in the underlying matter would rewrite the policy without regard to BP's reasonable expectations as expressed in the purchase order, and provide a windfall for One Beacon.

(8 NY3d at 715-16). Therefore, this court will find a reasonable possibility of coverage whenever the allegations in the underlying complaints, read liberally, indicate that the damages may be attributable to the scope of work of the insured subcontractor, regardless whether the allegations actually identify particular subcontractors.

(E.) Allegations in the Tenant Actions Which Create a Reasonable Possibility of Coverage

The underlying actions for which Archstone claims a breach of the duty to defend, and whose claims Archstone seeks to pass through to Tocci in the Archstone Action, include: Hunter v. ASN Roosevelt Center d/b/a Archstone Westbury (Archstone-Henderson Aff., Ex 84); Gedenken v. ASN Roosevelt (id., Ex. 85); DiGiovanna v. ASN Roosevelt Center d/b/a Archstone Westbury (id., Ex. 92); and In re Archstone Westbury Tenant Litigation (id., Ex. 87), which consolidated the Francois (id., Ex. 90), Marchese (id., Ex. 89), Sorrentino (id., Ex. 88), and Ventimiglia (id., Ex. 91)actions. While its papers also seek a defense on the Hughes action (id., Ex., 86) Archstone abandoned that claim during oral argument.

This court will examine all consolidated Complaints as one action, since all plaintiffs and members of the consolidated class actions joined onto the In re Archstone Complaint. However, the court must treat the non-consolidated Complaints in Hunter, DiGiovanna, and Gedanken individually for purposes of finding any coverage for a duty to defend Archstone. The court notes, however, that it need not analyze how any allegations in the non-consolidated complaints might affect any duty to defend Tocci in the Archstone Action, since only some allegations from any of the Tenant Actions would need to "pass through" to Tocci by the common law indemnity claims, in order to invoke a duty to defend Tocci in the Archstone Action.

Although the allegations in all Tenant Actions arguably stem from the same course of events, a liability policy provides coverage only for particular "bodily injury" or "property damage" that arises from a covered "occurrence." A plaintiff is entitled to choose her remedies, [*43]and seek recovery only for some legal claims available. Thus, the Court of Appeals in Ruder & Finn Inc. v. Seaboard Sur. Co. (52 NY2d 663 [1981]), examined two related Complaints independently, even though they stemmed from the same course of conduct:

[T]he suit in our State courts is another story. Although the complaint there was based upon the same chain of events which precipitated the Federal complaint, it was more narrowly focused. The gap between the two complaints was material, and, in the present context, is decisive.

(52 NY2d at 673). On the other hand, "[a] policy protects against poorly or incompletely pleaded causes as well as those artfully drafted." (Id. at 670). Therefore, allegations which are merely incomplete or ambiguous, but nonetheless raise the potential for coverage by stating a covered "occurrence," should be read alongside more complete allegations of another complaint that allege damages from the same "occurrence." This is particularly justified where, as here, extrinsic evidence known by the insurer confirms that both complaints state qualifying damages which stem from the same "occurrence," and the more complete allegations are not frivolous. (Cf. Lancer Ins. Co. v. STA Parking Corp., 2010 NY Slip Op. 30682[U], *8-9, 2010 NY Misc. LEXIS 1638 [NY Cty. Sup. Ct. March 22, 2010, J. Edmead]). In such a context, the more complete allegations of a related complaint merely provide further information to the insurer regarding coverage, and such information made known to the insurer can raise a reasonable possibility of coverage.

1. Archstone v. Tocci Complaint

Travelers seeks a declaration that the AI Carriers have a duty to defend Tocci in this Archstone Action. Because the claims against Tocci include indemnification for what Archstone paid or will pay in the Tenant Actions, the allegations in the Tenant Actions become relevant. The Archstone Action generally alleges negligent construction by Tocci and that "Tocci entered into various subcontract agreements and purchase orders with subcontractors and/or suppliers to obtain various labor, material and services on the Project." (¶ 16).

2. In re Archstone Complaint and Consolidated Complaints

Although In re Archstone does not identify "Archstone-Smith Operating Trust" as a defendant, it consolidated several actions which did, including the Marchese and Sorrentino actions. To this court's knowledge, no party contends that Archstone-Smith Operating Trust was no longer involved in the class actions because the Second Amended In re Archstone Complaint did not identify "Archstone Smith Operating Trust" in the caption. Therefore, all AI Carriers under whose policies "Archstone Smith Operating Trust" qualifies as an additional insured, may owe a duty to defend with respect to these consolidated actions.

The complaint acknowledges that other entities employed by Archstone contributed to their damages: damages "were caused by the joint, several and concurrent negligence of the Defendant and/or said Defendant's agents, servants, employees and/or licensees in the ownership, operation, management, design, construction, supervision, maintenance and control of the aforesaid premises." (Henderson Aff., Ex. 87 at ¶ 107).

The complaint alleges damages to property from water infiltration and damages from mold, mildew, or bacteria:

***

2. "Bodily injury" or "property damage" occurring after:

a. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or

b. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.

In the context of the duty to defend, a completed operations exclusion is generally interpreted narrowly. For example, in Frontier Insulation Contr., Inc. v. Merchants Mutual Ins. Co. (91 NY2d 169 [1997]), the duty to defend was at issue with respect to underlying asbestos litigation. The underlying litigation alleged that contractors' "negligent installation" caused their injuries. Although, logically, damages from exposure to asbestos would have occurred after the asbestos had been installed and the building occupied, the Court of Appeals held that a completed operations exclusion did not necessarily apply to all claims in the underlying litigation. The Court reasoned that claimants did not specify that their harm began only after the contractor had completed its operations and left the premises. (Id. at 177). The doubt was resolved in favor of the insured. The AI Carriers' reference to Continental Cas. Co. v. Employers Ins. Co. of Wausau (60 AD3d 128 [1st Dep't 2008]) for a contrary proposition, is unavailing, since that case involved the duty to indemnify and the Court held that laches estopped the claimants from asserting negligent installation of asbestos insulation, which could have triggered the premises/operations coverage. (Id. at 141).

Here, some AI Carriers contend that logically, no tenants would have moved into any apartments until they had been completed and any contractors had surrendered control of those units. However, much as in Frontier, supra, allegations in the Tenant Actions regarding the "negligence of the Defendants and/or said Defendant's agents, servants, employees and/or licensees in the... construction... of the aforesaid premises" (Archstone-Henderson Aff., Ex. 87 at ¶ 107), creates a doubt that is resolved in favor of the insured.

This is a stronger case than Frontier, however, for rejecting the application of the completed operations exclusion. It is plainly evident that all contractors performing operations on the Archstone-Westbury project, greatly increased their exposure to liability when tenants began to move into apartment units, even as their operations continued; that is, any injury by a tenant related to their construction operations would be a tort liability risk, rather than merely [*55]contractual or warranty-related liability . Of those AI Carriers contending for application of their completed operations exclusions, American States appears to have insured the earliest of the trade contractors, Metro Painting, to have completed its operations or have abandoned the construction site, by May 31, 2005. However, the In re Archstone Complaint alleges that tenants began moving into the Archstone Westbury complex no later than May 2005, while Metro Painting was admittedly still performing operations on the project:

Plaintiffs Steve Randall and Joyce Randall (the "Randalls") are former tenants of the Archstone Complex and resided there in Unit 216 from May 2005 until January 2008...

(Archstone-Henderson Aff., Ex. 87 at ¶ 5). Moreover, the Tenant Actions were class actions, and some class representatives do not identify their move-in dates. This court therefore cannot conclude that there is no reasonable possibility that some tenant began to suffer injury or property damage before Metro Painting abandoned the construction site. Faced with similar facts, the Appellate Division, First Department held that a contractor's presence on the site, even if the particular work from which the claimant had been injured had been completed, created a doubt in the application of the completed operations exclusion that was resolved in favor of the insured. (Perez v. NYC Housing Auth., 302 AD2d 222 [1st Dept. 2003]).In other words, even if some particular apartment unit had been completed and surrendered, there is a distinct possibility that wrap-up work and testing might still be performed on such apartment units.Finally, insurers must defend whenever the four corners of the underlying complaint state allegations within the scope of coverage, regardless of any patent lack of merit: "If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be." (Auto Ins. Co. of Hartford v. Cook, 7 NY3d 131, 137 [2006]). In this regard, the AI Carriers who exclude coverage for completed operations, cannot escape the fact that the underlying consolidated complaints allege that damages occurred beginning in 2003:

That on, about and between February 10, 2003 and continuing to and through November 2007, certain of the Plaintiffs and all members of the Personal Injury Subclass sustained serious and permanent injuries as a result of breathing, inhaling, being subjected to, and living in an environment infested with mildew, mold, bacteria and other contaminants.

(Archstone-Henderson Aff., Ex. 87 at ¶ 100). Similarly, the Hunter complaint alleges broadly:

6. That at all relevant times, the Defendant ARCHSTONE WESTBURY, its agents, servants, representatives and/or employees, constructed and built the Archstone Complex.

7. At all relevant times, Plaintiffs*** were tenants of ARCHSTONE WESTBURY and residents at the Archstone Complex.

***

9. That at all relevant times, the Archstone Complex had significant water intrusion, water damage and extensive mold infestation.

(Id., Ex. 84 at ¶¶ 6-7, 9). The AI Carriers which excluded coverage for completed operations may very well be able to prove by other evidence that their named insureds did not perform any further work on any buildings in which members of the plaintiff classes resided, since any date when units were surrendered to any and all members of the plaintiff classes. Those AI Carriers would then not owe any duty to indemnify Archstone or Tocci. However, for purposes of the [*56]duty to defend, those AI Carriers must accept as true the allegations in the complaints, and allegations regarding damages beginning in 2003 and occupation of apartment units beginning no later than May 2005, fall within the scope of coverage provided by the AI Carriers' litigation insurance.

(B.) Exclusion for Liability Assumed in Contract

Regarding: American States; Pennsylvania National

Various insurance policies contain an exclusion for damages as to which the insured has liability only because of an indemnification agreement or similar assumption of liability:

This insurance does not apply to bodily injury or property damage for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement.

However, this exclusion does not apply if there is another independent source of liability for such damages. (O'Dowd v. American Sur. Co. of NY, 3 NY2d 347 [1957]). These policies thus contain additional language indicating that this exclusion does not apply to liability "that the insured would have in the absence of the contract agreement." The Archstone Action involves claims for both, contractual and common law indemnification in connection with the Tenant Actions. Because common law indemnification is liability that Tocci "would have in the absence of the contract agreement" for contractual indemnity, there is a reasonable possibility of coverage for those indemnification claims.

Various AI carriers also rely on this language to contend that their policies expressly and unambiguously exclude purely contractual damages. In the context of the duty to defend, the Appellate Division, First Department, rejected the contention that this language excluded from coverage purely contractual damages. (Hotel Des Artistes, Inc v. General Accident Ins. Co. of Am., 9 AD3d 181 [1st Dep't 2004]). The Court reasoned that the insurer's interpretation was contrary to the provision's plain meaning, since "nothing in the coverage terms of the policy even implies a distinction between liability acquired by contract or in tort." (Id. at 189). Indeed, the plain meaning of the provision is to exclude from coverage the insured's voluntary assumption of another's liability, such as by an indemnification agreement. It is axiomatic that contractual damages occur only upon breach of contract, and therefore there is no liability for such damages upon the signing of a contract, before they occur.

(C) Tort Injury Limitation on "Occurrence"; Work/Product Exclusion; and Premises Hazard (or "Damage to Property") Exclusion

Regarding: American European; American States; Delos; Erie; Liberty Mutual; Merchants Mutual; Ohio Casualty; Pennsylvania National; QBE; Scottsdale; Hartford Fire*

Various insurers argue that their policies exclude purely contractual damages from coverage, because the requirement of an "occurrence" is not satisfied. This argument is essentially an alternative manifestation of the work/product exclusion in many general commercial liability insurance policies, and the language should not be read to broaden that exclusion beyond its plain meaning. (See Hotel Des Artistes, 9 AD3d at 189-191).

Insurers point to language in their policies that indicates that a covered "occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The Appellate Division, First Department examined this language [*57]in George A. Fuller Co. v. United States Fid. & Guar. Co. (200 AD2d 255, 259 [1st Dep't 1994]):

The [underlying] complaint does not allege an "occurrence" resulting in "property damage" as contemplated by the comprehensive general liability policy... The asserted claims arise out of a contract dispute between the insured, a general contractor, and Epurio, the property owner...[The contractor's] policy, however, does not insure against faulty workmanship in the work product itself but rather faulty workmanship in the work product which creates a legal liability by causing bodily injury or property damage to something other than the work product.The Court then reasoned that the claimant had only alleged economic damages, such as repair and reconstruction costs and diminution in property value, and that such allegations do not involve an accident or continuous exposure to a harmful condition, such as would represent an "occurrence." Because damage only to the work or product itself was alleged, stand-alone allegations of negligent installation or supervision (which, it is worth noting, would collapse into contractual or warranty causes of action under the economic loss doctrine), did not transform the nature of the exclusively contractual or warranty claims.

Subsequent decisions have adopted this holding and have more broadly concluded in dicta that general commercial liability policies, as a rule, provide coverage only for damages arising in tort and exclude purely contractual or warranty damages. (See, e.g., Hartford Acc. & Indem. Co. v. A.P. Reale & Sons, Inc., 228 AD2d 935 [3d Dep't 1996], Pavarini Constr. Co., Inc. v. Continental Ins. Co., 304 AD2d 501 [1st Dep't 2003]). However, because each insurance policy is an agreement between the parties, it must be interpreted in accordance with the language of that policy. Thus, Hotel Des Artistes, supra, distinguished this line of cases to hold that there was a duty to defend for the contract damages at issue, because the specific policy at issue did not contain a work/product exclusion such as the one in Fuller, supra, or any language that would unambiguously exclude from coverage damages arising from contract. (Hotel Des Artistes, 9 AD3d at 189-191).

Given facts such as in Hotel Des Artistes, where the parties did not bargain to acquire insurance only for damages arising in tort, it has become more advisable to apply the policy concerns articulated in Fuller, supra, in the context of the work/product exclusion. (See, e.g., J. Lucarelli & Sons, Inc. v. Mountain Valley Indem. Co., 64 AD3d 856 [3rd Dep't 2009]). To this court's knowledge, there are no AI Carriers who are contending for the tort injury limitation imposed on "occurrence," and who do not also have a work/product (or "your work" or "damage to property") exclusion.Turning to the work/product ("your work" or "damage to property") and premises hazard ("damage to property") exclusions, several AI Carriers contend that language in these exclusions relieves them of any duty to defend Archstone or Tocci, because all allegations in the Tenant Actions relate to defects in their named insured's work. The work/product exclusion removes from coverage damage to "that particular part of any property that must be restored, repaired or replaced because your work was incorrectly performed on it," "property damage to your product' arising out of it or any part of it," and "property damage to your work' arising out of it or any part of it." The premises hazard exclusion removes from coverage damage to "property you own, rent, or occupy...," and damage to "that particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the property damage arises out of those operations." [*58]

The premises hazard exclusion, as it might apply to any allegations in the Tenant Actions or the Archstone Action, is co-extensive with work/product exclusion in this case, since the products and work applied in the Archstone Westbury complex involved real property. The legal understanding and interpretation of a work/product exclusion has been explained numerous times. The fact that defective work is alleged, does not mean that the work/product exclusion applies. The exclusion applies only if the claimed damages relate only to the work or product itself, such that they make out only contractual or warranty type claims; if some defective work or product causes damage to persons or to property other than to any installed product or work performed, the exclusion does not apply. For a lucid explanation of the work/product exclusion, Insurance Claims & Disputes 5th (Wint, 5 Ins. Cl. & D. 5th § 11:10) quotes from Weedo v. Stone-E-Brick, Inc. (81 N.J. 233, 405 A.2d 788, 790—92 [1979]):

The consequence of not performing well is part of every business venture; the replacement or repair of faulty goods and works is a business expense, to be borne by the insured-contractor in order to satisfy customers.

There exists another form of risk in the insured-contractor's line of work, that is, injury to people and damage to property caused by faulty workmanship... While it may be true that the same neglectful craftsmanship can be the cause of both a business expense of repair and a loss represented by damage to persons and property the two consequences are vastly different in relation to sharing the cost of such risks as a matter of insurance underwriting.

An illustration of this fundamental point may serve to mark the boundaries between business risks' and occurrence giving rise to insurable liability. When a craftsman applies stucco to an exterior wall of a home in a faulty manner and discoloration, peeling and chipping result, the poorly-performed work will perforce have to be replaced or repaired by the tradesman or by a surety. On the other hand, should the stucco peel and fall from the wall, and thereby cause injury to the homeowner or his neighbor standing below or to a passing automobile, an occurrence of harm arises which is the proper subject of risk-sharing as provided by the type of policy before us in this case... [The] injury to persons and damage to other property constitute the risks intended to be covered under the CGL.

(Accord Adler Neilson Col v. Ins. Co. of North America, 56 NY2d 540, 542 [1982], J. Lucarelli & Sons, Inc. v. Mountain Valley Indem. Co., 64 AD3d 856 [2d Dep't 2009]).

Cases which several AI Carriers cite to this court and which have held that water damage to a building involved only repair costs to the owner—cases including Nash v. Baumblit Constr. Corp. (72 AD3d 1037 [2d Dep't 2010]), Savik, Murray & Auropa Constr. Mgmt. Co., LLC v. ITT Hartf. Ins. Group, et al. (26 Misc 3d 1237[A] [unreported], 2010 NY Slip Op. 50431[U] [Sup. Ct. New York Cty. 2010]), and Kvaerner Metals v. Comm. Union Ins. Co. (908 A.2d 888 [Pa. 2006])—are therefore distinguishable. Critically, the underlying complaints which those cases analyzed did not allege any other damages to persons or property, other than to the work or product itself. In contrast, the Tenant Actions in which Archstone seeks a duty to defend, and whose allegations pass through indemnity claims against Tocci in the Archstone Action, allege consequential damages to the tenants' personal property and health. Damage to the tenants' personal property is not damage only to the work or product itself.

(D.) Mold Exclusion

Regarding: American States; Delos; Erie; Hartford Fire*; Liberty Mutual; Ohio Casualty; Pennsylvania National; Scottsdale

Only Continental Casualty, Delos, Erie, Interstate, Liberty Mutual, Navigators, Ohio Casualty, Scottsdale, and Hartford Fire oppose or cross-move against Archstone and Travelers on the ground that their mold exclusion removes from coverage all allegations in the underlying actions. In fact, some AI Carrier policies do not exclude damages from mold, while others expressly provide coverage for damages arising from mold. As to those carriers, therefore, there is a reasonable possibility of coverage as to the tenants' alleged bodily injury related to mold exposure.

In relevant part, the AI Carriers' mold exclusions bar coverage for " bodily injury' [or] property' ... which would not have occurred or taken place, in whole or in part, but for the... inhalation of, ingestion of, contact with, exposure to, existence of, or presence of any fungi' or bacteria'... regardless of whether any other cause, event, material or product contributed concurrently or in any sequence to such injury or damage." These AI Carriers contend that all property damage and personal injury was related to mold, or concurrently to mold and water. Archstone and Travelers contend that the Tenant Actions allege damage to personal property that was not concurrently damaged by mold. Alternatively, there is a doubt as to whether tenants suffered some damage to personal property that was related only to water intrusion, and this doubt supports a reasonable possibility of coverage.

Judge Douglas P. Woodlock of the United States District Court of Massachusetts, decided that Virginia Surety's mold exclusion, with identical or similar wording to the AI Carriers' mold exclusions, did not apply to bar coverage for Tocci in the Archstone Action, because the Tenant Actions, including the In re Archstone complaint, alleged damages from water and/or mold. (Interstate-Breen Aff., Ex. L). This court agrees.

The In re Archstone complaint alleges that tenants have sustained "significant property damage and other economic damages as a result of the water damage and mold infestation present in their apartments. Such losses may include but are not limited to the costs of replacing or restoring property damaged by water and/or exposed to toxic mold..." (¶ 88).

(E.) QBE Policy Exclusion for "Multi Track Housing Development" Work

QBE contends that its exclusion for new construction "of any new residential single-family dwelling, townhouse, condominium, co-operative or multi-track housing development" applies to all the allegations against Archstone and Tocci. However, the court must ask, is an apartment complex consisting of multiple buildings a single-family dwelling, a townhouse, a condominium, a co-operative, or a multi-track housing development? The exclusion uses very precise terms, none of which appear to apply to rental apartment units, or complexes comprising buildings of such rental apartments.Therefore, the court cannot find that this exclusion applies to all the allegations againstArchstone or Tocci.

(F.) Ohio Casualty's Exclusion for EIFS Work

Ohio Casualty contends that its exclusion for work involving Exterior Insulation Finish System (EIFS) applies to all the allegations against Archstone or Tocci. An EIFS system, however, is a [*59]unique, identifiable product, and thus the phrase does not apply in general to all exterior veneers or sidings applied onto buildings. Neither does the exclusion's definition embrace all exterior veneers or sidings applied onto buildings. The record reveals that the Archstone complex used only vinyl siding and a manufactured stone veneer, not an EIFS system. The exclusion does not apply to all the allegations against Archstone or Tocci.

J.S.C.