Justice Anil Singh
Plaintiff 137 Broadway Associates sought defense and indemnification from insurer Leading Insurance Group in an underlying negligence action. Leading moved to dismiss, while 137 cross-moved for summary judgment, arguing the policy between Leading and 602 West 137th Deli was in full effect at the time of the underlying action, thus Leading was obligated to defend, indemnify and reimburse it in that action. 602 was a commercial tenant at a different premises owned by Cromwell Associates, before renting from 137. 602 kept Leading as its insurer at its new location, yet, Cromwell, not 137 was listed as the additional insured in the policy. 137 requested that Leading defend and indemnify it in the underlying action based on its insurance with 602, but Leading refused, stating Cromwell was listed as the additional insured. Courts have held it was appropriate to regard a unilateral mistake listing a nonentity as an additional insured as a mutual mistake, and honor the intent of the contract rather than uphold the erroneous drafting. It found the clear intent of the policy was to insure risks associated with 137's ownership of the premises. Thus, the mistake of listing Cromwell should be regarded as mutual, and Leading must provide coverage to 137, denying Leading dismissal.
