MEMORANDUM & ORDER In this declaratory judgment action, Plaintiff Indian Harbor Insurance Company (“Indian Harbor”) seeks a declaration authorizing it to disclaim defense and indemnity coverage to its insureds, Knockdown Contracting, Inc. (“Knockdown”) and MAJ Construction, Inc. (“MAJ”), based on Knockdown’s failure to cooperate with Indian Harbor to defend Knockdown in a lawsuit brought by Columbia Hicks Associates, LLC (“Columbia Hicks”) against Knockdown. In that lawsuit, Columbia Hicks principally seeks indemnity from Knockdown related to a bodily injury lawsuit brought by Andres Rivera, sued herein as Andrea Rivera, against Knockdown. Indian Harbor and Columbia Hicks have cross-moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(a). For the reasons stated below, the Court denies Indian Harbor’s motion and grants Columbia Hicks’s motion. BACKGROUNDThe following facts are taken from the parties’ Rule 56.1 Statements and other documents in the record, and undisputed unless otherwise noted.A. The Underlying LawsuitOn May 2, 2008, while employed by and working for Knockdown, Andres Rivera was injured when a wooden beam fell on him at a building located at 86 Congress Street in Brooklyn, New York (the “Building”). (D.E. # 49 (“Pl. 56.1″)3; D.E. # 43 (“Def. 56.1″)
1, 8.) At the time of the accident, Knockdown had been hired as a subcontractor by Mirage Constructing Corp. (“Mirage”) to demolish the Building; Jairo Santiago, the principal of Knockdown, executed the subcontractor’s agreement on Knockdown’s behalf. (Def. 56.14-5.) Knockdown was insured by Indian Harbor under a commercial general liability policy, policy number ESG0026151, which included coverage for bodily injury (the “Policy”). (Def. 56.14, 9; Def. Ex. L.) MAJ is an additional insured under the Policy. (Pl. 56.140; Def. Ex. L.) Fairmont Insurance Brokers, Ltd. (“Fairmont”) was Knockdown’s insurance broker, and Fairmont had helped Knockdown procure the Policy with Indian Harbor. (Def. 56.110.) At the time of the accident, Columbia Hicks held title to the Building. (Def. 56.17.)On February 19, 2009, Rivera filed a verified complaint initiating a bodily injury lawsuit against Columbia Hicks and MAJ in the Supreme Court of the State of New York, Bronx County, titled Andres Rivera v. Columbia Hicks LLC [and] MAJ Construction Services, Corp., bearing Index No. 301377/2009 (the “Underlying Lawsuit”). (Pl. 56.12; Def. 56.119; Def. Ex. D.) Rivera subsequently filed an amended verified complaint, which, among other things, added Mirage as a co-defendant. (Def. 56.120; Def. Ex. E.)On March 6, 2009, L&M Development Partners (“L&M”), a partial owner of Columbia Hicks, sent a letter to Fairmont on behalf of Columbia Hicks. (Def. 56.125.) In that letter, Columbia Hicks (1) placed Fairmont on notice of the Underlying Lawsuit, (2) demanded that Fairmont place Indian Harbor on notice of the Underlying Lawsuit, and (3) demanded that Indian Harbor investigate, defend, and indemnify it in the Underlying Lawsuit. (Def. Ex. N.)On March 20, 2009, XL Insurance (“XL”), the owner of Indian Harbor, sent a letter response to L&M on behalf of Indian Harbor. In that letter, Indian Harbor (1) confirmed its receipt and review of Columbia Hicks’s March 6, 2009 letter requesting that Knockdown defend and indemnify it, (2) declined to comment as to any defense or indemnification as its “investigation [was] continuing in this matter,” and (3) requested that Columbia Hicks provide copies of any contract between Knockdown and Columbia Hicks. (Def. Ex. O; Pl. Ex. 14 at 6:14-21.)In mid-April 2009, XL contacted the wholesale broker, CRC Insurance, in an attempt to reach Knockdown. (Pl. 56.116.) CRC Insurance then forwarded the requested to Fairmont, Knockdown’s retail broker. (Pl. 56.117.) Fairmont was unable to contact Knockdown because Knockdown had gone out of business. (Pl. 56.118.)On April 21, 2009, Columbia Hicks sent a letter response to XL, following up on Columbia Hicks’s request that Knockdown defend and indemnify it and attaching relevant contracts pertaining to construction work being done at the Building. (Def. Ex. P.)On May 22, 2009, XL sent a letter response to Columbia Hicks, denying Columbia Hicks’s request for defense and indemnity as an Additional Insured on the Policy. (Def. Ex. Q.) Consequently, Columbia Hicks’s insurance carrier began providing, and continues to provide, defense coverage to Columbia Hicks in the Underlying Action. (Def. 56.131.)On January 25, 2012, Knockdown officially dissolved by proclamation/annulment of authority of the New York Secretary of State. (Def. Ex. MM.)B. The Second Third-Party LawsuitOn October 13, 2012, Columbia Hicks filed a Second Third-Party Lawsuit against Knockdown in the same court as the Underlying Lawsuit, titled Columbia Hicks Associates LLC v. Knockdown Contracting, Inc. (Pl. 56.14; Def. 56.134; Def. Ex. F.) Columbia Hicks alleges that Knockdown owes it indemnity in the Underlying Lawsuit and that Knockdown is liable to Columbia Hicks for Knockdown’s failure to procure insurance. (Pl. 56.15.) Indian Harbor hired the law firm Clausen Miller, PC (“Clausen Miller”) to defend Knockdown in the Second Third-Party Lawsuit. (Pl. 56.16; Def. 56.137.)On January 22, 2013, Carl Perri of Clausen Miller sent a letter to Knockdown at the address listed on the Policy: 79-41 Metropolitan Avenue, Middle Village, NY 11379 (the “Metropolitan Address”). (Def. Ex. T; Def. Ex. L.) In that letter, Clausen Miller explained that (1) it had been retained by XL to represent Knockdown in the Second Third-Party Lawsuit; (2) requested that Knockdown provide Clausen Miller with a copy of its file related to the matter; and (3) asked Knockdown to contact Clausen Miller to discuss the matter. (Def. Ex. T.) On March 29, 2013, Clausen Miller sent a letter to XL informing XL that, despite diligent efforts, Clausen Miller was unable to reach Knockdown by phone and was unable to locate a new corporate phone number or address. (Def. Ex. U.)On May 21, 2013, Kaufman Dolowich & Voluck LLP (“Kaufman Dolowich”), on behalf of XL and Indian Harbor, sent a letter to Knockdown at the Metropolitan Address explaining that it would continue to represent Knockdown in the Second Third-Party Lawsuit subject to a reservation of rights, and reminding Knockdown of its duty to cooperate in its own defense with Clausen Miller. (Def. Ex. V.)On October 30, 2013, Clausen Miller sent a letter to Knockdown at the Metropolitan Address providing a status update on the lawsuit. (Def. Ex. W.) The letter was returned to Clausen Miller and marked “Return to Sender. Not Deliverable as Addressed. Unable to Forward.” (Def. Ex. W at 6.)On January 10, 2014, Clausen Miller sent another letter to Knockdown at the Metropolitan Address providing another status update on the lawsuit. (Def. Ex. X.) That letter was again returned to Clausen Miller and marked “Return to Sender. Not Deliverable as Addressed. Unable to Forward.” (Def. Ex. X at 4.) In total, throughout its representation, Clausen Miller sent approximately 14 letters to Knockdown. (Pl. Ex. 9 at 5:14-6:6.)In April or May of 2014, Clausen Miller retained a private investigator, Daniel Irwin of Profile Claim Services, Inc. (“Profile Claims”), to try and locate Jairo Santiago as a witness. (Pl. Ex. 8 at 14:21-15:3.) Irwin was given Santiago’s last known address, the Metropolitan Address, and was told that Santiago was affiliated with MAJ and that he might have some affiliation with Knockdown. (Pl. Ex. 2 at 14:10-20, 15:4-22; Def. Ex. Y at 1.)On May 20, 2014, Profile Claims issued a report detailing its efforts to locate Santiago and advising that those efforts were “unsuccessful.” (Def. Ex. Y.) Although it had identified two Jairo Santiagos residing in the New York Area, it “ruled out both of them as having any affiliations with MAJ Construction or Knockdown Contracting.” (Def. Ex. Y.) The investigator traveled to the Metropolitan Address, but the building was unoccupied and the investigator found no offices for Santiago or a contracting company. (Def. Ex. Y.)Following a search using Santiago’s last known address, Profile Claims found a phone listing and an address for a Jairo Santiago, born 1981, at 417 55th St. Apt. 3, Brooklyn, NY 11220 (the “Brooklyn Address”). (Def. Ex. Y.) The investigator sent a letter to the Brooklyn Address and left several voicemail messages, but did not receive a response. (Def. Ex. Y.) An investigator then traveled to the Brooklyn Address and did not find anyone home at Apt. 3, but was able to determine that the building’s owner was Carmen Sanchez. (Def. Ex. Y.) The investigator called and subsequently met with Sanchez, who advised that she did have a tenant named Jairo Santiago, but she “did not believe that he had any involvement in the construction industry” and “he was currently unemployed.” (Def. Ex. Y.) The investigator left a business card and subsequently received a phone call from that Jairo Santiago, who advised that “he has never been in the construction industry and has no affiliation with MAJ Construction Services,” that “he was employed as a part time truck driver,” but that “he was currently unemployed.” (Def. Ex. Y.) The report does not indicate whether the investigator asked Santiago if he was affiliated with Knockdown, or whether the investigator advised Santiago of the pending lawsuit against Knockdown or of efforts by Clausen Miller and Indian Harbor to seek his cooperation in connection with the pending lawsuit.The parties dispute whether the Jairo Santiago located by the investigator is in fact the principal of Knockdown. (Compare Pl. 56.133, with Def. Counterstatement 56.133.) According to a Lexis Nexis Public Records Search (the “Lexis report”), the same Jairo Santiago is affiliated with addresses at 7941 Metropolitan Avenue, Middle Village, NY 11379 (the Metropolitan Address) and at 417 55th St. 4B, Brooklyn, NY 11220 (the Brooklyn Address). However, the Lexis report refers to an individual born in 1980 and refers to apartment “4B” at the Brooklyn Address, whereas the Profile Claims report refers to an individual born in 1981 and refers to apartment “3″ at the Brooklyn address. (Pl. Ex. 17; Def. Ex. Y.) Accordingly, Indian Harbor contends that the Jairo Santiago located by the investigator is in fact Knockdown’s principal; Columbia Hicks contends that that he is not.After another search, Profile Claims identified a second Jairo Santiago, born 1949, located at an address in Elmhurst, New York (the “Elmhurst Address”). (Def. Ex. Y.) An investigator traveled to the Elmhurst Address and did not find anyone home at the relevant apartment. (Def. Ex. Y.) But the investigator spoke with the building superintendent, who advised that Jairo Santiago did reside in the apartment but “has no affiliation in the construction industry,” is “unemployed,” and “does not speak English.” (Def. Ex. Y.) The investigator left a business card but did not receive a response. (Def. Ex. Y.)Profile Claims concluded its report: “At your earliest opportunity please advise if you have any contact information for the Insured’s Broker. Perhaps the Broker can lead us to Mr. Santiago.” (Def. Ex. Y.) Clausen Miller did not instruct Profile Claims to further investigate, and neither Clausen Miller nor Indian Harbor hired another investigator to perform any follow-up or supplemental investigation. (Def. 56.1
