| Matter of East 51st St. Crane Collapse Litig. |
| 2014 NY Slip Op 06859 |
| Decided on October 9, 2014 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 9, 2014
Gonzalez, P.J., Saxe, DeGrasse, Richter, Clark, JJ.
13167 769000/08 150063/10
East 51st Street Development Company, LLC, et al., Plaintiffs,
v
Lincoln General Insurance Company, Defendant-Respondent, Axis Surplus Insurance Company, et al., Defendants, Interstate Fire and Casualty Company, Defendant-Appellant.
Lawrence, Worden, Rainis & Bard, P.C., Melville (Roger B. Lawrence of counsel), for appellant.
Ruberry Stalmack & Garvey LLC, Chicago, IL (Richard M. Kuntz of the bar of the State of Illinois, admitted pro hac vice, of counsel), for respondent.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered October 4, 2013, which granted the motion of defendant Lincoln General Insurance Company (Lincoln) for leave to amend its answer and cross claim against defendant Interstate Fire and Casualty Company (Interstate), unanimously affirmed, with costs.
The motion was properly granted as Lincoln's proposed amended answer and cross claim was not "palpably insufficient or patently devoid of merit" (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 499 [1st Dept 2010]). Contrary to Interstate's contention that this Court declared in its February 5, 2013 order that Interstate has no obligation to pay any costs incurred in the defense of plaintiff East 51st Development Company LLC in underlying litigation and dismissed Lincoln's cross claim against Interstate seeking to recover such costs, this Court explicitly held that the Lincoln and Interstate policies are both primary and refused to dismiss [*2]Lincoln's cross claim against Interstate seeking to recover costs incurred in the defense of plaintiff (see Matter of East 51st St. Crane Collapse Litig., 103 AD3d 401, 402 [1st Dept 2013]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 9, 2014
CLERK