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UMF Contracting Corp. v. Arch Specialty Ins. Co.

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DECISION AND ORDER This is an action seeking a declaratory judgment that defendants — all insurance companies — are required by various policies of insurance to defend and indemnify plaintiff — a contractor — in connection with allegations and claims asserted in an underlying real property damage action in which plaintiff has been sued (452 E. 118th St. LLC, et al. v. 329 Pleasant Ave. Mazal Holdings LLC, et al., index No. 151437/17 [Sup Ct NY County]) (the “Underlying Action”). Defendant Arch Specialty Insurance Company moves herein to dismiss this declaratory judgment action on the force of a “Subsidence Exclusion” contained in the policy of insurance which it issued to plaintiff. For the reasons set forth herein, the motion is denied.The court has considered the following e-filed submissions of the parties: document Nos. 3 through 12 (the moving papers); 17 through 19 (the opposition papers); and 20 (the reply papers). The court has also received and considered the oral argument of counsel for the parties, on the Part 38 return date of February 21, 2019.BACKGROUNDThe Underlying Action:The Underlying Action was commenced by an owner of a building located at 452 Pleasant Avenue, New York, New York, abutting real property known as 329 Pleasant Avenue, New York, New York (Second Amended Verified Complaint in the Underlying Action1 [the "Underlying Complaint"]

11-14). As alleged, the owner of 329 Pleasant Avenue had undertaken to develop its property by constructing an eight-story, twenty-unit, residential building thereat. To accomplish this, it retained several construction-related companies to perform the work (see, id.,

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