FILED: NEW YORK COUNTY CLERK 09/04/ :50 AM INDEX NO /2014 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 09/04/2014

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1 FILED: NEW YORK COUNTY CLERK 09/04/ :50 AM INDEX NO /2014 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 09/04/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x THE CITY OF NEW YORK, -against- Plaintiff, WAUSAU UNDERWRITERS INSURANCE COMPANY and HELLMAN ELECTRIC CORP., Index No /2014 AFFIRMATION OF ANJAN MISHRA Defendants x ANJAN MISHRA, an attorney admitted to practice in the courts of the State of New York, affirms under penalty of perjury as follows: 1. I am a Senior Counsel in the Office of Zachary W. Carter, Corporation Counsel of the City of New York. I submit this affirmation in support of plaintiff The City of New York s ( City ) motion for summary judgment on its claims: (A) for declaratory judgment that defendant Wausau Underwriters Insurance Company ( Wausau ) has a duty to defend and/or indemnify the City and must reimburse the City for past defense costs and attorneys fees in five personal injury actions: (i) Charlesia Moore-Dixon and Donne Dixon v. Welsbach Electric Corp., Emcor Group Inc., Kenneth W. Brouwer, Consolidated Edison Company of New York, Inc., Consolidated Edison, Inc., The City of New York, New York City Department of Transportation, New York City Department of Environmental Protection, and Individuals Currently Unknown 1 5 and Entities Currently Unknown 1 5, New York Supreme Court, Bronx County, No /13 (the Moore-Dixon Action ); (ii) Julio Cruz v. The City of New York, New York Supreme Court, Bronx County, No /13 (the Cruz Action ), which settled on or about April 11, 2014; (iii) In Bog Bae v. The City of New York and Hellman Electric

2 Corp., New York Supreme Court, New York County, No /13 (the Bae Action ); (iv) Teekaram Ramsarran v. The City of New York, Hellman Electric Corp., and Maspeth Supply Co., LLC, New York Supreme Court, Queens County, No /13 (the Ramsarran Action ); and (v) Teresa Santana v. The City of New York, NYC Department of Transportation, NYC Department of Traffic, and Hellman Electric Corp., New York Supreme Court, New York County, No /13 (the Santana Action ) (collectively, the Underlying Actions ); (B) that defendant Wausau and defendant Hellman Electric Corporation ( Hellman ) must indemnify the City for all costs and expenses the City incurred defending and settling the Cruz Action; and (C) alternatively, if the Court determines that Wausau does not have a duty to defend the City in one or more Underlying Actions, that defendant Hellman has breached its contractual obligations by failing to procure insurance coverage for the City for claims that arise out of operations under Hellman s contracts with the City. 2. For each of the Underlying Actions, Wausau is the insurer, Hellman is the insured, and the City is an additional insured. 3. Issue was joined in this action with respect to defendant Hellman on June 23, 2014 and with respect to defendant Wausau on July 7, A true and correct copy of plaintiff s Summons and Verified Complaint, filed and dated April 25, 2014, is attached hereto as Exhibit 1. A true and correct copy of defendant Hellman s Verified Answer and Affirmative Defenses, which the City received by mail on June 23, 2014, and which Hellman thereafter filed electronically on August 21, 2014, is attached hereto as Exhibit 2. A true and correct copy of defendant Wausau s Verified Answer and Affirmative Defenses, which was filed electronically on July 7, 2014, is attached hereto as Exhibit 3. 2

3 FACTS The City s Contracts with Hellman The Bronx Street Lighting Contract (Moore-Dixon Action) 4. On or about April 21, 2011, the City, through its Department of Transportation (DOT), and Hellman entered into a two-year contract commencing on or about May 1, 2011, number 84110BXTR530, to maintain in good condition and proper working order all street lighting devices within the Bronx (the Bronx Street Lighting Contract ). A true and correct copy of the relevant excerpts of the Bronx Street Lighting Contract, including the relevant insurance and indemnification provisions, is attached hereto as Exhibit The Bronx Street Lighting Contract required Hellman to obtain a commercial general liability insurance policy in the amounts of no less than $2,000,000 per occurrence and $5,000,000 in the aggregate, in which the City was named as an additional insured. Ex. 4 (App. E, at E-5). The policy was required to protect the City from claims for property damage and/or bodily injury, including death which may arise from operations under this Contract, whether such operations are performed by the Contractor or anyone directly or indirectly employed by the Contractor. Ex. 4 (App. E, at E-8 E-9). 6. The Bronx Street Lighting Contract also requires Hellman to defend, indemnify, and hold harmless the City from any and all claims or judgments for damages and from costs and expenses allegedly arising out of or in connection with any operations of [Hellman] and/or its Subcontractors, or their failure to comply with the provisions of this Contract or of the Law. Ex. 4 (App. D, at D-8, E). 3

4 The Bronx Traffic Control Device Contract (Cruz Action) 7. On or about December 1, 2012, the City, through DOT, and Hellman entered into a two-year contract commencing on or about December 1, 2012, number 84112BXTR633, to maintain in good condition and proper working order all illuminated traffic control devices within the Bronx (the Bronx Traffic Control Device Contract ). A true and correct copy of the relevant excerpts of the Bronx Traffic Control Device Contract, including the relevant insurance and indemnification provisions, is attached hereto as Exhibit The Bronx Traffic Control Device Contract required Hellman to obtain a commercial general liability insurance policy in the amounts of no less than $3,000,000 per occurrence and $5,000,000 in the aggregate, in which the City was named as an additional insured. Ex. 5 (Schedule A, at 98). The policy was required to protect the City from claims for property damage and/or bodily injury, including death, which may arise from any of the operations under this Contract. Ex. 5 (Article , , at ). 9. The Bronx Traffic Control Device Contract also requires Hellman to defend, indemnify, and hold harmless, the City, its employees, and agents against any and all claims and costs and expenses of whatever kind allegedly arising out of or in any way related to the operations of [Hellman] and/or its Subcontractors in the performance of this Contract or from [Hellman s] and/or its Subcontractors failure to comply with any of the provisions of this Cotnract or of the Law. Ex. 5 (Article , at 155). 4

5 The Manhattan Traffic Control Device Contract (Bae and Santana Actions) 10. On or about November 16, 2009, the City, through DOT, and Hellman entered into a two-year contract, number 84109MNTR399, beginning on or about December 1, 2009, to maintain in good condition and proper working order all illuminated traffic control devices within Manhattan (the Manhattan Traffic Control Device Contract ). A true and correct copy of the relevant excerpts of the Manhattan Traffic Control Device Contract, including the relevant insurance and indemnification provisions, is attached hereto as Exhibit The Manhattan Traffic Control Device Contract required Hellman to obtain a commercial general liability insurance policy in the amounts of no less than $2,000,000 per occurrence and $5,000,000 in the aggregate, in which the City was named as an additional insured. Ex. 6 (App. E, at E-2). The policy was required to protect the City from claims for property damage and/or bodily injury, including death which may arise from operations under this Contract, whether such operations are performed by the Contractor or anyone directly or indirectly employed by the Contractor. Ex. 6 (App. E, at E-5 E-6). 12. The Manhattan Traffic Control Device Contract also requires Hellman to defend, indemnify, and hold harmless the City from any and all claims or judgments for damages and from costs and expenses allegedly arising out of or in connection with any operations of [Hellman] and/or its Subcontractors, or their failure to comply with the provisions of this Contract or of the Law. Ex. 6 (App. D, at D-8, E). 13. On or about May 18, 2011, the City and Hellman entered into a contract change order, which extended the term of the Manhattan Traffic Control Device Contract through and including November 30, 2012 (the Manhattan Change Order ). A true and correct copy of the relevant excerpts of the Manhattan Change Order is attached hereto as Exhibit 7. 5

6 The Queens Street Lighting Contract (Ramsarran Action) 14. On or about September 30, 2010, the City and Hellman entered into an eighteen-month contract, number 84110QUTR487, beginning on or about October 30, 2010, to install, remove, and relocate equipment and perform other electrical work in connection with decorative lighting in Queens (the Queens Street Lighting Contract ). A true and correct copy of the relevant excerpts of the Queens Street Lighting Contract, including the relevant insurance and indemnification provisions, is attached hereto as Exhibit The Queens Street Lighting Contract required that Hellman obtain a commercial general liability insurance policy in the amounts of no less than $2,000,000 per occurrence and $5,000,000 in the aggregate in which the City was named as an additional insured. Ex. 8 (App. E, at E-2). The policy was required to protect the City from claims for property damage and/or bodily injury, including death which may arise from operations under this Contract, whether such operations are performed by the Contractor or anyone directly or indirectly employed by the Contractor. Ex. 8 (App. E, at E-5 E-6). 16. The Queens Street Lighting Contract also requires Hellman to defend, indemnify, and hold harmless the City from any and all claims or judgments for damages and from costs and expenses allegedly arising out of or in connection with any operations of [Hellman] and/or its Subcontractors, or their failure to comply with the provisions of this Contract or of the Law. Ex. 8 (App. D, at D-7, E). 17. On or about May 8, 2012, the City and Hellman entered into a contract change order, which extended the term of the Queens Street Lighting Contract through and including July 23, 2012 (the Queens Change Order ). A true and correct copy of the relevant excerpts of the Queens Change Order is attached hereto as Exhibit 9. 6

7 The Insurance Policies 18. As its contracts with the City required, Hellman obtained a series of commercial general liability policies from Wausau, including but not limited to a policy in effect from June 27, 2011 through June 27, 2012 and bearing policy number YVJ-Z (the Policy ) and a policy in effect from June 27, 2012 through June 27, 2013 and bearing policy number YVJ-Z (the Policy ) (collectively, the Policies ). Ex. 1 (Verif. Compl.) 16; Ex. 3, at 3 (Wausau Ans. 16). True and correct copies of Certificates of Insurance reflecting such coverage are attached hereto as Exhibit Under the Policies, Hellman is a named insured and the City is an additional insured. Ex. 1, at 5 (Verif. Compl ); see Ex. 10, at 1 6. The Moore-Dixon Action The City Tenders the Underlying Actions; Wausau Fails to Acknowledge Its Duty to Defend the City 20. On or around February 5, 2013, the City was served with a summons and complaint in the Moore-Dixon Action. A true and correct copy of the complaint in the Moore- Dixon Action is attached hereto as Exhibit The complaint in the Moore-Dixon Action alleges that on or around November 24, 2011, plaintiff Charlesia Moore-Dixon ( Moore-Dixon ) was allegedly injured because of insufficient lighting at the intersection of West 230th Street and Broadway in the Bronx. 22. The complaint in the Moore-Dixon Action further alleges that: The City failed to install street lights at the intersection of Broadway and West 230th Street in the Bronx to illuminate depth of curb, sunken cover, and broken or missing paving (id. 27); 7

8 The City failed to install and/or turn on street lights on permanent and temporary light poles above and near the Broadway curb of the northeast corner of this intersection (id. 100); The City failed to have temporary lighting or allow for sufficient ambient lighting, street pole lighting, and electricity to street lights and traffic lights at this intersection (id. 100); The sidewalk at this intersection contained debris and obstructions, including a temporary streetlight pole (id. 100); and Moore-Dixon s fall and the resulting injuries (including those to her husband and co-plaintiff Donne Dixon on his claim for loss of consortium) were a result of the condition of the roadway at this intersection, which was not readily observable to Moore-Dixon due to insufficient lighting and illumination (id. 107, 108, 114, 115). 23. The allegations set forth in the Moore-Dixon Action are within the coverage of the Policies because the plaintiffs alleged injuries arose out of and/or are related to the maintenance of the streetlights at or adjacent to the intersection of West 230th Street and Broadway in the Bronx a site within the boundaries of the Bronx Street Lighting Contract. 24. By letter dated June 7, 2013, the New York City Law Department ( Law Department ) tendered the defense of the Moore-Dixon Action to Wausau (the Moore-Dixon Tender ). A true and correct copy of the Moore-Dixon Tender letter is attached hereto as Exhibit 12. Moore-Dixon Action. The Cruz Action 25. Wausau did not respond to the Moore-Dixon Tender letter. 26. To date, Wausau has not acknowledged its duty to defend the City in the 27. On or around April 9, 2013, the City was served with a Notice of Claim alleging that the claimant Julio Cruz ( Cruz ) had been injured on or about February 27, 2013 when the motor vehicle he was driving was struck by another vehicle at the intersection of 8

9 Westchester Avenue and East 156th Street in the Bronx. The Notice of Claim further asserted that the traffic light at the above location was not working properly at the time of the occurrence, that Mr. Cruz had injuries to his neck, back, shoulders, and knees, and that his damages were in the sum of $2,000,000. A true and correct copy of the redacted Notice of Claim is attached hereto as Exhibit On or around August 7, 2013, the City was served with a summons and complaint in the Cruz Action. A true and correct copy of the complaint in the Cruz Action is attached hereto as Exhibit The complaint in the Cruz Action alleges that on or around February 27, 2013, plaintiff Cruz was injured when the motor vehicle he was driving collided with another motor vehicle at or near the intersection of Westchester Avenue and East 156th Street in the Bronx. (Id ) 30. The complaint in the Cruz Action further alleges that the City was negligent because the traffic light at or near the location of the collision was not working properly at the time. (Id. 13.) 31. The allegations set forth in the Cruz Action are within the coverage of the Policies because the plaintiff s alleged injuries arose out of and/or are related to the maintenance of the traffic light signals at or adjacent to the intersection of Westchester Avenue and East 156th Street in the Bronx a site within the boundaries of the Bronx Traffic Control Device Contract. 32. By letter dated August 28, 2013, the Law Department tendered the defense of the Cruz Action to Wausau (the Cruz Tender ). A true and correct copy of the Cruz Tender letter is attached hereto as Exhibit Wausau did not respond to the Cruz Tender letter. 9

10 34. To date, Wausau has not acknowledged its duty to defend the City in the Cruz Action. 35. On or about April 11, 2014, the Cruz Action settled. Under the settlement, the City agreed to pay Cruz $30, The amount of the settlement was reasonable and the settlement was made in good faith. On or about July 28, 2014, the City made the settlement payment to Cruz. The check cleared on July 31, A true and correct copy of the redacted check, which was provided by the Office of the Comptroller of the City of New York ( Comptroller s Office ), is attached hereto as Exhibit 16. A true and correct copy of a payment disbursement query for this check, which the Comptroller s Office provided on August 25, 2014, is attached hereto as Exhibit 17. The Bae Action 37. On or around October 10, 2013, the City was served with a summons and complaint in the Bae Action. A true and correct copy of the complaint in the Bae Action is attached hereto as Exhibit The complaint in the Bae Action alleges that on or around September 6, 2012, plaintiff In Bog Bae ( Bae ) was injured when the motor vehicle he was driving was involved in an accident with another motor vehicle at or adjacent to the intersection of East 125th Street and First Avenue in Manhattan. (Id. 36, 48.) defendant, alleges that: 39. The complaint in the Bae Action, which also names Hellman as a The City and Hellman each owned the electronic traffic control device or devices located at or about the intersection of East 125th Street and First Avenue in Manhattan (id. 11, 22); 10

11 On or before September 6, 2012, each of the City and Hellman and their respective agents, servants, and/or employees maintained, controlled, managed, repaired, inspected, and performed work upon the electronic traffic control device or devices located at or about this intersection (id , 23 33); On or about September 6, 2012, the electronic traffic control device or devices at this intersection operated in a defective manner (id. 34); The motor vehicle accident was the result of the improperly functioning and/or defectively operating electronic traffic control device or devices located at or about this intersection (id. 36); and The motor vehicle accident resulted in severe, serious, and permanent personal injuries to Bae (id ). 40. The allegations set forth in the Bae Action are within the coverage of the Policies because the plaintiff s alleged injuries arose out of and/or are related to the maintenance of the traffic light signals by Hellman at or adjacent to the intersection of East 125th Street and First Avenue in Manhattan a site within the boundaries of the Manhattan Traffic Control Device Contract and Manhattan Change Order. 41. By letter dated October 29, 2013, the Law Department tendered the defense of the Bae Action to Wausau (the Bae Tender ). A true and correct copy of the redacted Bae Tender letter is attached hereto as Exhibit By dated November 5, 2013, a Wausau claims specialist responded and requested additional information from the Law Department. On November 6, 2013, the Law Department replied and (1) provided relevant, non-privileged, and non-confidential information that the Wausau claims specialist had requested, and (2) sought to discern Wausau s position on the tender of the Bae Action. A true and correct copy of the redacted November 5-6, correspondence is attached hereto as Exhibit

12 43. Wausau did not respond to the Law Department s November 6, 2013 message. 44. To date, Wausau has not acknowledged its duty to defend the City in the Bae Action. The Ramsarran Action 45. On or around November 12, 2013, the City was served with a summons and complaint in the Ramsarran Action. A true and correct copy of the complaint in the Ramsarran Action is attached hereto as Exhibit The complaint in the Ramsarran Action alleges that on or around August 9, 2012, plaintiff Teekaram Ramsarran ( Ramsarran ) was injured when he tripped, slipped, stumbled, and fell while walking within the crosswalk area on Jamaica Avenue at or adjacent to the northwest corner of its intersection with Sutphin Boulevard in Queens. (Id. 24, 26.) 47. The complaint in the Ramsarran Action, which also names Hellman as a defendant, further alleges that prior to August 9, 2012: Hellman performed repairs, paving, re-paving, maintenance, excavations, improvements, digging, building, and/or other work upon the roadway or street, grating and/or bricks on Jamaica Avenue at or near the intersection of Sutphin Boulevard in Queens (id. 12); The City retained, directed, permitted, authorized, contracted, employed, hired and/or paid Hellman to perform this work on Jamaica Avenue at or near this intersection (id. 13); This work was performed under the direction, supervision, and control of Hellman (id. 14); Hellman had actual and/or constructive notice of the hazardous and dangerous condition that existed on a portion of the roadway or street, grating and/or bricks on Jamaica Avenue at or near this intersection (id. 16); and Hellman, its agents, servants, and/or employees, failed to post any signs warning the general public that there existed a trip and fall hazard caused by a 12

13 August 9, 2012: defective, uneven, raised, irregular, broken area and/or improperly maintained, constructed, repaired, and/or reconstructed portion of roadway or street, grating and/or bricks on Jamaica Avenue at or near this intersection (id. 17). 48. The complaint in the Ramsarran Action further alleges that on or about Due to the defendants negligence, recklessness, and carelessness, Ramsarran was allegedly injured when he stumbled and fell while walking within the crosswalk area on Jamaica Avenue at or adjacent to the northwest corner of its intersection with Sutphin Boulevard in Queens (id. 24); and Ramsarran s fall and injuries were the results of a defective, uneven, raised, irregular, broken portion of roadway or street, grating and/or bricks and/or improperly maintained, constructed, repaired, and/or reconstructed portion of roadway or street, grating and/or bricks at this location (id. 25). 49. The allegations set forth in the Ramsarran Action are within the coverage of the Policies because the plaintiff s alleged injuries arose out of and/or are related to work performed by Hellman on the traffic light signals and/or streetlights at or adjacent to the intersection of Jamaica Avenue and Sutphin Boulevard in Queens a site within the boundaries of the Queens Street Lighting Contract and Queens Change Order. 50. By letter dated December 4, 2013, the Law Department tendered the defense of the Ramsarran Action to Wausau (the Ramsarran Tender ). A true and correct copy of the Ramsarran Tender letter is attached hereto as Exhibit By dated December 9, 2013, a Wausau claims specialist responded and requested additional information from the Law Department. By dated December 10, 2013, the Law Department replied and rejected Wausau s requests as improper. A true and correct copy of this correspondence is attached hereto as Exhibit 23. message. 52. Wausau did not respond to the Law Department s December 10,

14 Ramsarran Action. The Santana Action 53. To date, Wausau has not acknowledged its duty to defend the City in the 54. On or around November 4, 2013, the City was served with a summons and complaint in the Santana Action. A true and correct copy of the complaint in the Santana Action is attached hereto as Exhibit The complaint in the Santana Action alleges that on or around August 22, 2012, plaintiff Teresa Santana ( Santana ) was injured when she was standing at or adjacent to the northwest corner of Broadway and Worth Street in Manhattan and was struck in the head by the control box, or elevated pedestrian signal housing, located at that corner of the intersection. (Id ) defendant, alleges that: 56. The complaint in the Santana Action, which also names Hellman as a The City and Hellman each owned the overhead/raised/elevated traffic control boxes, poles and supporting cables (defined as control boxes ) located at the northwest corner of Broadway and Worth Street in Manhattan (id. 6, 41); Each of the City and Hellman and their respective agents, servants, servants, and/or employees supervised and controlled the activities and operated, maintained, managed, and controlled the premises at this location (id. 9 13, 43 47); Hellman had a contract with the City to maintain, inspect, and repair the traffic boxes in the City of New York (id ); On August 22, 2012, the aforesaid control box became detached/dislodged, fell from its pole, and struck Santana in the head, which resulted in serious and severe personal injuries to Santana (id. 64, 67); The defendants, along with their respective agents, servants, and/or employees: (1) allowed the control box for this intersection to be, become, and remain in a dangerous, defective, hazardous, and unsafe condition; (2) allowed the control box to be and remain in such a state of disrepair and/or 14

15 negligent repair for such a long and unreasonable length of time so as to cause Santana s injuries; and (3) failed to repair and/or improperly repaired the control box at this intersection (id. 73); and This occurrence and Santana s resulting injuries were due to the negligence, carelessness, and recklessness of the City, Hellman, and the other defendants in the ownership, operation, maintenance, and control of the premises and the control box at this intersection (id. 65, 66). 57. The allegations set forth in the Santana Action are within the coverage of the Policies because the plaintiff s alleged injuries arose out of and/or are related to Hellman s maintenance of the pedestrian signal housing (or control box ) at or adjacent to the northwest corner of the intersection of Broadway and Worth Street in Manhattan Manhattan a site within the boundaries of the Manhattan Traffic Control Device Contract and Manhattan Change Order. 58. By letter dated December 10, 2013, the Law Department tendered the defense of the Santana Action to Wausau (the Santana Tender ). A true and correct copy of the Santana Tender letter is attached hereto as Exhibit 25. Santana Action. 59. Wausau did not respond to the Santana Tender letter. 60. To date, Wausau has not acknowledged its duty to defend the City in the The Present Action 61. On April 25, 2014, the City filed the Summons and Verified Complaint against Wausau and Hellman in this action. Ex Pursuant to Insurance Law 1212, the Summons and Verified Complaint were served on Wausau via the Superintendent of the New York State Department of Financial Services on April 30, A true and correct copy of the proof of service is attached hereto as Exhibit

16 63. The Summons and Verified Complaint were served personally on Hellman on April 30, A true and correct copy of the affidavit of service is attached hereto as Exhibit On June 23, 2014, the City received Hellman s Verified Answer and Affirmative Defenses by mail. Ex In its answer, Hellman denies each and every allegation contained in the paragraphs of the [C]omplaint designated paragraphs 16, 17, and 18 as plead[ed] and begs leave to refer all questions of law to the Court. Ex. 2, at 2 (Hellman Ans. 9.) Defenses. Ex Paragraphs of the Verified Complaint (Ex. 1) allege that: Hellman obtained a series of commercial general liability policies from Wausau, including a policy in effect from June 27, 2011 through June 27, 2012 and bearing policy number YVJZ (the Policy ) and a policy in effect from June 27, 2012 through June 27, 2013 and bearing policy number YVJZ (the Policy ) (collectively, the Policies ) (Ex. 1, at 5 (Verif. Compl. 16)). Hellman is a named insured under the Policies (id. 17). The City is as an additional insured under the Policies (id. 18). 67. On July 7, 2014, Wausau served its Verified Answer and Affirmative 68. Wausau s answer admits that it issued commercial general liability policies No. YVJ-Z , with a policy period from June 27, 2011 to June 27, 2012, and No. YVJ-Z , with a policy period from June 27, 2012 to June 27, 2013, to Hellman as the first Named Insured. Ex With regard to the City s sending of the Tender letters for the five Underlying Actions, Wausau admits that it received letters from the Law Department dated (1) 16

17 June 7, 2013 (Ex. 3 22), (2) August 28, 2013 (Ex. 3 29), (3) October 29, 2013 (Ex. 3 38), (4) December 4, 2013 (Ex. 3 47), and (5) December 10, 2013 (Ex. 3 55). 70. In Wausau s answer, which it served 68 days after the City served its Summons and Verified Complaint and 13 months after the City sent the Moore-Dixon Tender letter, more than 10 months after the City sent the Cruz Tender letter, more than 8 months after the City sent the Bae Tender letter, more than 7 months after the City sent the Ramsarran Tender letter, and more than 6 months after the City sent the Santana Tender letter Wausau for the first time asserted various purported grounds to deny coverage to the City. Ex For the reasons set forth in the accompanying Memorandum of Law, the City is entitled to summary judgment requiring Wausau to defend the City under the Policies, and the purported defenses set forth in Wausau s answer that are based on policy exclusions are void as a matter of law. 72. Attached hereto as Exhibit 28 is a true and correct copy of a decision and order in City of New York v. Endurance Am. Ins. Co., No /11, (Sup. Ct., N.Y. Co. Sept. 4, 2012), granting the City summary judgment to the extent of finding that it was an additional insured under the insurance policy issued to its traffic-signal maintenance contractor. The City s Defense Costs in the Underlying Actions 73. As a result of Wausau s wrongful failure and refusal to defend the City in the Underlying Actions, to date the City has had to defend itself through the Law Department. 74. When an insurance carrier wrongfully refuses to acknowledge its defense obligations to the City, the Law Department charges the carrier $250 an hour for attorney time and $75 an hour for paralegal time to provide such legal services to the City. The Law 17

18 Department charges the carrier for these services from the moment of notification through the time, if any, when the carrier provides such defense. 75. The City has incurred attorneys fees and expenses in connection with the Underlying Actions, including, but not limited to various items of disclosure, motion practice and attendance at court conferences. 76. Attached hereto as Exhibit 29 is a true and correct copy of a decision and order in City of New York v. Northern Ins. Co. of N.Y., No /99 (Sup. Ct. Kings Cty. Dec. 11, 2002), awarding the City attorneys fees at a rate of $250 per hour. 77. Attached hereto as Exhibit 30 is a true and correct copy of a decision and order in City of New York v. Illinois Nat l Ins. Co., No /06 (Sup. Ct. Kings Cty. Nov. 22, 2010), awarding the City attorneys fees at a rate of $250 per hour. Wausau s Obligation to Indemnify City for Payment to Settle Cruz Action 78. The Cruz Action asserted a covered claim under the Policy. 79. The City settled the Cruz Action for a payment of $30,000 to Cruz. 80. Under the terms of the Policy, the City is entitled to be indemnified by Wausau in the amount of $30,000, with interest from the date of payment. Hellman s Alternative Liability 81. As noted above, each of the City s contracts with Hellman (collectively, the Contracts ) required Hellman to obtain a commercial general liability insurance policy in the amounts of no less than $2,000,000 per occurrence and $5,000,000 in the aggregate, covering liability arising out of Hellman s operations thereunder. Each of the contracts further required Hellman to have the City named as an additional insured under the respective insurance policy to protect the City against liability arising out of operations under that contract. 18

19 82. If the Court determines that the Policies do not provide the City with coverage for the claims asserted in the Underlying Actions, then Hellman will have breached its contracts with the City by failing to procure insurance coverage in which an insurer has a duty to defend the City against liability arising out of operations under the contracts. 83. The City will have been damaged as a result of Hellman s breach of its contracts with the City in an amount equal to the City s defense costs in the Underlying Actions, plus the amount of any judgment or settlement paid by the City, including the $30,000 that the City has paid to settle the Cruz Action. 19

20 WHEREFORE, the City's motion for summary judgment should be granted and a judgment entered that (l) requires Wausau to defend the City in the Moore-Dixon, Bae, Ramsarrqn, and Santa ø Actions; (2) declares that 'Wausau had a duty to defend the City in the Cruz Action; (3) requires Vy'ausau to reimburse the City for its past costs and attorneys' fees in defending the Underlying Actions at the rate of $250 per hour for attorney time and $75 per hour for paralegal time, plus out-of-pocket expenses and interest from the respective moments of notification through the time, if any, when Wausau provides such defense; (4) requires Wausau to indemnify the City for all costs and expenses the City incurred defending and settling the Cruz Action; (5) alternatively, if the Court determines that Wausau does not have a duty to defend andlor indemnify the City in one or more Underlying Actions, declares that defendant Hellman has breached its contract(s) with the City by failing to procure insurance coverage in which an insurer has a duty to defend the City against liability arising out of operations under the contract; (6) awards the City an amount of damages to be determined at frial; and (7) affords the City such other and funher relief as is just and proper. Dated: New York, New York September 4,2014 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorneys þr Plaintiff rhe City of New York 100 Church Street, Rm New York, New York (2r2) By: Anjan Senior Counsel /'lr/@ 20