Preview
FILED: NEW YORK COUNTY CLERK 05/07/2024 02:18 PM INDEX NO. 652351/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/07/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
TRAVELERS INDEMNITY COMPANY Index No.
Plaintiff, SUMMONS
-vs- The basis for venue is: Venue is
based on CPLR § 503(a).
ACE AMERICAN INSURANCE COMPANY,
Defendant.
----------------------------------------------------------------------X
TO: ACE AMERICAN INSURANCE COMPANY
YOU ARE HERBY SUMMONED to answer the complaint of the plaintiff which is
served herewith, and to serve an answer on the undersigned attorney, Usery & Associates, within
twenty (20) days after service of the Summons and Complaint or within thirty (30) days of the
Summons and Complaint if not served upon you personally or is served outside the State of New
York. In the event of your failure to answer the Complaint of the plaintiff, judgment will be
taken against you by the default for the relief demanded in the Complaint.
Dated: New York, New York
May 7, 2024 USERY & ASSOCIATES
By: /s/ Tung Sing Wong
Attorneys for Travelers Indemnity Co.
Direct: 917.778.6429
Fax: 844.571.3789
Email: twong2@travelers.com
Please address all correspondence sent by
mail to:
P.O. Box 2996
Hartford, CT 06104-2996
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Physical Address:
485 Lexington Avenue, 6th Floor
New York, NY 10017
Defendant’s address:
ACE American Insurance Company
P.O. Box 1000
436 Walnut Street
Philadelphia, PA 19106
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THE SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
TRAVELERS INDEMNITY COMPANY Index No.:
Plaintiff, COMPLAINT
-v-
ACE AMERICAN INSURANCE COMPANY,
Defendant.
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Travelers Indemnity Company (“Travelers”) by and through its attorneys Usery &
Associates, as and for its complaint against ACE American Insurance Company (“ACE”),
alleges, upon information and belief, as follows:
NATURE OF ACTION
1. Travelers has provided a defense to Holt Construction Corp. (“Holt”), American
Express Travel Related Services Company, Inc. (“AMEX”), the Port Authority of New York and
New Jersey (“Port Authority”), and third party N.C. & Sons Inc., The Nicholson Corporation
(“Nicholson”) in a lawsuit entitled Donald Cleary v. Port Authority of New York and New
Jersey, Holt Construction and American Express Travel Services Company, Inc.(the “Cleary
Action”), Third-Party action entitled Holt Construction and American Express Travel Services
Company, Inc., v. N.C. & Sons, Inc., The Nicholson Corporation and Unity Electric Co., Inc.
(the “Holt Action”), and the Second-Third-Party action Port Authority of New York and New
Jersey v. N.C. & Sons, Inc., The Nicholson Corporation and Unity Electronic Co., Inc.(the “Port
Authority Action”), in the Supreme Court of the State of New York, County of Queens, index
number 724431/2020 (collectively the “Underlying Action”).
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2. In this action, Travelers seeks a declaration that ACE is obligated to defend Holt,
AMEX, and the Port Authority in connection with the Underlying Action for the alleged
personal injury sustained while performing work at the site located at Terminal 4, JFK Airport in
the County of Queens, City and State of New York (the “Premises”).
THE PARTIES
3. At all times relevant hereto, Travelers was and is a Connecticut corporation duly
licensed and authorized to write insurance and conduct business in the State of New York with a
principal place of business in Hartford, Connecticut.
4. At all times relevant hereto, ACE was and is a Pennsylvania corporation with a
principal place of business in Philadelphia, Pennsylvania.
JURISDICTION AND VENUE
5. The venue of this action in New York Supreme Court, County of New York is
proper pursuant to CPLR 503(a), since neither Travelers nor ACE are residents of New York
State and Travelers brought this claim in New York County.
6. This Court has jurisdiction over this claim as the complaint seeks declaratory
relief pursuant to CPLR 3001.
7. An actual justiciable controversy exists between the parties as to the coverage
afforded under the insurance policy issued by ACE.
8. Travelers has no remedy at law.
THE RELEVANT POLICIES
9. ACE issued a general liability insurance policy under policy number HDO
G71078176 to Unity Electric Co., Inc. (“Unity”), for the policy period June 1, 2019, to July 1,
2020 (the “ACE Policy”).
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10. Upon information and belief, subject to certain terms, conditions, and exclusions,
the ACE Policy generally provides coverage for bodily injury that takes place during the policy
period and is caused by an accident.
11. Upon information and belief, ACE Policy contains an Additional Insured
endorsement that provides Additional Insured status to, among others, Holt, AMEX, and the Port
Authority.
12. Travelers Indemnity issued a general liability policy under policy number DT CO
4P020048 IND 19 to Nicholson for the policy period December 31, 2019, to December 31, 2020
(the “Travelers Indemnity Policy”).
13. Subject to certain terms, conditions, and exclusions, the Travelers Indemnity
Policy generally provides coverage for bodily injury that takes place during the policy period and
is caused by an accident.
BACKGROUND FACTS
14. On June 11, 2018, American Express Travel Related Services Company, Inc., as
Owner, and Holt, as Construction Manager, entered into a Work Order (the “Work Order”)
pursuant to an earlier executed Master Construction Management Agreement to perform certain
work at the Amex Centurion Lounge.
15. The Work Order required Holt to name, among others, AMEX and the Port
Authority as Additional Insureds.
16. On April 29, 2019, Holt as Contractor, and Nicholson, as Subcontractor, entered
into a subcontract (the “Nicholson Contract”) to perform certain millwork at the Premises.
17. The Nicholson Contract contained an insurance procurement provision requiring
Nicholson to procure a general commercial liability on a primary and non-contributory basis.
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18. The Nicholson Contract also required Nicholson to name, among others, AMEX
and the Port Authority as additional insureds under its policy.
19. Holt, as Contractor, and Unity, as Subcontractor, entered into a Master
Subcontract Agreement (“MSA”) prior to the alleged injuries sustained in the Underlying
Action. A true and accurate copy is attached hereto as Exhibit 1.
20. The MSA contained an insurance procurement provision requiring Unity to
procure, among other types of insurance, a comprehensive general liability policy on a primary
and non-contributory basis.
21. The MSA also required Unity to name, among others, Holt and the owner of
future projects as additional insureds under its policy.
22. On December 14, 2018, Holt, as Contractor, and Unity, as Subcontractor, entered
into a Subcontract Agreement (the “Unity Agreement”), to perform certain electrical work at the
Premises. A true and accurate copy is attached hereto as Exhibit 2.
23. The Unity Agreement contained an Insurance Requirement provision requiring
Unity to acquire Comprehensive General Liability insurance on a primary and non-contributory
basis.
24. The Unity Agreement also required Unity to name, among others, Holt, AMEX,
and the Port Authority as additional insureds on its policy.
25. The Underlying Action has settled.
26. Travelers defended Nicholson, Holt, AMEX, and the Port Authority in the
Underlying Action.
TENDERS TO ACE
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27. By correspondence dated September 23, 2022, Travelers tendered the defense of
Nicholson, Holt, AMEX, and the Port Authority to Unity.
28. By correspondence dated July 13, 2022, Travelers tendered the defense of
Nicholson, Holt, AMEX, and the Port Authority to ACE.
29. To date, neither Unity nor ACE have responded to Travelers’ tender demands.
CAUSE OF ACTION FOR DECLARATORY RELIEF
30. Travelers repeats, realleges, and incorporates each and every allegation contained
in paragraphs “1” through “29” above as if fully set forth herein.
31. Holt, AMEX, and the Port Authority (collectively the “Underlying Defendants”)
qualify as additional insureds under the ACE Policy.
32. The Underlying Defendants were entitled to a defense under the ACE Policy.
33. The coverages provided to the Underlying Defendants under the ACE Policy are
primary and non-contributory with any coverage provided by the Travelers Policy.
34. ACE has refused to fulfill its coverage obligations to the Underlying Defendants
with respect to the Underlying Action.
35. Accordingly, Travelers seeks a declaration that ACE had an obligation to defend
the Defendants as additional insureds under the ACE Policy; that the coverages provided by the
ACE Policy to the Defendants are primary; and that the obligations of Travelers to the
Defendants in the Underlying Action were excess to proper exhaustion and full payment of the
limits of the ACE Policy.
WHEREFORE, Plaintiff Travelers requests that this Court issue judgment as follows:
1. Declaring that the Underlying Defendants are insureds under the ACE Policy to
whom ACE owed coverage with respect to the Underlying Action;
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2. Declaring that ACE had a duty to defend the Underlying Defendants in
connection with the Underlying Action;
3. Declaring that ACE’s coverage obligations to the Underlying Defendants with
respect to the Underlying Action are primary to any coverage provided by Travelers;
4. Declaring that the obligations of Travelers to the Underlying Defendants in
connection with the Underlying Action are excess and non-contributory to those of ACE’
5. Awarding judgment against ACE in an amount equal to the sums that Travelers
incurred in defending the claims against the Defendants in the Underlying Action;
6. Granting an award in favor of Travelers for the costs of the suit incurred herein;
and
7. Granting such other and further relief as the Court may deem just and proper.
Dated: New York, New York
May 7, 2024
USERY & ASSOCIATES
/s/ Tung Sing Wong
By: Tung Sing Wong
Attorney for Travelers Indemnity Company
T. 917.778.6680
F. 844.571.3789
E. twong2@travelers.com
Mailing Address:1
P.O. Box 2996
Hartford, CT 06104
1
Physical Address: 485 Lexington Ave., 6th Fl., New York, NY 10017
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Preview
FILED: NEW YORK COUNTY CLERK 05/07/2024 02:18 PM INDEX NO. 652351/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/07/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X TRAVELERS INDEMNITY COMPANY Index No. Plaintiff, SUMMONS -vs- The basis for venue is: Venue is based on CPLR § 503(a). ACE AMERICAN INSURANCE COMPANY, Defendant. ----------------------------------------------------------------------X TO: ACE AMERICAN INSURANCE COMPANY YOU ARE HERBY SUMMONED to answer the complaint of the plaintiff which is served herewith, and to serve an answer on the undersigned attorney, Usery & Associates, within twenty (20) days after service of the Summons and Complaint or within thirty (30) days of the Summons and Complaint if not served upon you personally or is served outside the State of New York. In the event of your failure to answer the Complaint of the plaintiff, judgment will be taken against you by the default for the relief demanded in the Complaint. Dated: New York, New York May 7, 2024 USERY & ASSOCIATES By: /s/ Tung Sing Wong Attorneys for Travelers Indemnity Co. Direct: 917.778.6429 Fax: 844.571.3789 Email: twong2@travelers.com Please address all correspondence sent by mail to: P.O. Box 2996 Hartford, CT 06104-2996 1 of 8 FILED: NEW YORK COUNTY CLERK 05/07/2024 02:18 PM INDEX NO. 652351/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/07/2024 Physical Address: 485 Lexington Avenue, 6th Floor New York, NY 10017 Defendant’s address: ACE American Insurance Company P.O. Box 1000 436 Walnut Street Philadelphia, PA 19106 2 of 8 FILED: NEW YORK COUNTY CLERK 05/07/2024 02:18 PM INDEX NO. 652351/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/07/2024 THE SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X TRAVELERS INDEMNITY COMPANY Index No.: Plaintiff, COMPLAINT -v- ACE AMERICAN INSURANCE COMPANY, Defendant. ----------------------------------------------------------------------X Travelers Indemnity Company (“Travelers”) by and through its attorneys Usery & Associates, as and for its complaint against ACE American Insurance Company (“ACE”), alleges, upon information and belief, as follows: NATURE OF ACTION 1. Travelers has provided a defense to Holt Construction Corp. (“Holt”), American Express Travel Related Services Company, Inc. (“AMEX”), the Port Authority of New York and New Jersey (“Port Authority”), and third party N.C. & Sons Inc., The Nicholson Corporation (“Nicholson”) in a lawsuit entitled Donald Cleary v. Port Authority of New York and New Jersey, Holt Construction and American Express Travel Services Company, Inc.(the “Cleary Action”), Third-Party action entitled Holt Construction and American Express Travel Services Company, Inc., v. N.C. & Sons, Inc., The Nicholson Corporation and Unity Electric Co., Inc. (the “Holt Action”), and the Second-Third-Party action Port Authority of New York and New Jersey v. N.C. & Sons, Inc., The Nicholson Corporation and Unity Electronic Co., Inc.(the “Port Authority Action”), in the Supreme Court of the State of New York, County of Queens, index number 724431/2020 (collectively the “Underlying Action”). 3 of 8 FILED: NEW YORK COUNTY CLERK 05/07/2024 02:18 PM INDEX NO. 652351/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/07/2024 2. In this action, Travelers seeks a declaration that ACE is obligated to defend Holt, AMEX, and the Port Authority in connection with the Underlying Action for the alleged personal injury sustained while performing work at the site located at Terminal 4, JFK Airport in the County of Queens, City and State of New York (the “Premises”). THE PARTIES 3. At all times relevant hereto, Travelers was and is a Connecticut corporation duly licensed and authorized to write insurance and conduct business in the State of New York with a principal place of business in Hartford, Connecticut. 4. At all times relevant hereto, ACE was and is a Pennsylvania corporation with a principal place of business in Philadelphia, Pennsylvania. JURISDICTION AND VENUE 5. The venue of this action in New York Supreme Court, County of New York is proper pursuant to CPLR 503(a), since neither Travelers nor ACE are residents of New York State and Travelers brought this claim in New York County. 6. This Court has jurisdiction over this claim as the complaint seeks declaratory relief pursuant to CPLR 3001. 7. An actual justiciable controversy exists between the parties as to the coverage afforded under the insurance policy issued by ACE. 8. Travelers has no remedy at law. THE RELEVANT POLICIES 9. ACE issued a general liability insurance policy under policy number HDO G71078176 to Unity Electric Co., Inc. (“Unity”), for the policy period June 1, 2019, to July 1, 2020 (the “ACE Policy”). 4 of 8 FILED: NEW YORK COUNTY CLERK 05/07/2024 02:18 PM INDEX NO. 652351/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/07/2024 10. Upon information and belief, subject to certain terms, conditions, and exclusions, the ACE Policy generally provides coverage for bodily injury that takes place during the policy period and is caused by an accident. 11. Upon information and belief, ACE Policy contains an Additional Insured endorsement that provides Additional Insured status to, among others, Holt, AMEX, and the Port Authority. 12. Travelers Indemnity issued a general liability policy under policy number DT CO 4P020048 IND 19 to Nicholson for the policy period December 31, 2019, to December 31, 2020 (the “Travelers Indemnity Policy”). 13. Subject to certain terms, conditions, and exclusions, the Travelers Indemnity Policy generally provides coverage for bodily injury that takes place during the policy period and is caused by an accident. BACKGROUND FACTS 14. On June 11, 2018, American Express Travel Related Services Company, Inc., as Owner, and Holt, as Construction Manager, entered into a Work Order (the “Work Order”) pursuant to an earlier executed Master Construction Management Agreement to perform certain work at the Amex Centurion Lounge. 15. The Work Order required Holt to name, among others, AMEX and the Port Authority as Additional Insureds. 16. On April 29, 2019, Holt as Contractor, and Nicholson, as Subcontractor, entered into a subcontract (the “Nicholson Contract”) to perform certain millwork at the Premises. 17. The Nicholson Contract contained an insurance procurement provision requiring Nicholson to procure a general commercial liability on a primary and non-contributory basis. 5 of 8 FILED: NEW YORK COUNTY CLERK 05/07/2024 02:18 PM INDEX NO. 652351/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/07/2024 18. The Nicholson Contract also required Nicholson to name, among others, AMEX and the Port Authority as additional insureds under its policy. 19. Holt, as Contractor, and Unity, as Subcontractor, entered into a Master Subcontract Agreement (“MSA”) prior to the alleged injuries sustained in the Underlying Action. A true and accurate copy is attached hereto as Exhibit 1. 20. The MSA contained an insurance procurement provision requiring Unity to procure, among other types of insurance, a comprehensive general liability policy on a primary and non-contributory basis. 21. The MSA also required Unity to name, among others, Holt and the owner of future projects as additional insureds under its policy. 22. On December 14, 2018, Holt, as Contractor, and Unity, as Subcontractor, entered into a Subcontract Agreement (the “Unity Agreement”), to perform certain electrical work at the Premises. A true and accurate copy is attached hereto as Exhibit 2. 23. The Unity Agreement contained an Insurance Requirement provision requiring Unity to acquire Comprehensive General Liability insurance on a primary and non-contributory basis. 24. The Unity Agreement also required Unity to name, among others, Holt, AMEX, and the Port Authority as additional insureds on its policy. 25. The Underlying Action has settled. 26. Travelers defended Nicholson, Holt, AMEX, and the Port Authority in the Underlying Action. TENDERS TO ACE 6 of 8 FILED: NEW YORK COUNTY CLERK 05/07/2024 02:18 PM INDEX NO. 652351/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/07/2024 27. By correspondence dated September 23, 2022, Travelers tendered the defense of Nicholson, Holt, AMEX, and the Port Authority to Unity. 28. By correspondence dated July 13, 2022, Travelers tendered the defense of Nicholson, Holt, AMEX, and the Port Authority to ACE. 29. To date, neither Unity nor ACE have responded to Travelers’ tender demands. CAUSE OF ACTION FOR DECLARATORY RELIEF 30. Travelers repeats, realleges, and incorporates each and every allegation contained in paragraphs “1” through “29” above as if fully set forth herein. 31. Holt, AMEX, and the Port Authority (collectively the “Underlying Defendants”) qualify as additional insureds under the ACE Policy. 32. The Underlying Defendants were entitled to a defense under the ACE Policy. 33. The coverages provided to the Underlying Defendants under the ACE Policy are primary and non-contributory with any coverage provided by the Travelers Policy. 34. ACE has refused to fulfill its coverage obligations to the Underlying Defendants with respect to the Underlying Action. 35. Accordingly, Travelers seeks a declaration that ACE had an obligation to defend the Defendants as additional insureds under the ACE Policy; that the coverages provided by the ACE Policy to the Defendants are primary; and that the obligations of Travelers to the Defendants in the Underlying Action were excess to proper exhaustion and full payment of the limits of the ACE Policy. WHEREFORE, Plaintiff Travelers requests that this Court issue judgment as follows: 1. Declaring that the Underlying Defendants are insureds under the ACE Policy to whom ACE owed coverage with respect to the Underlying Action; 7 of 8 FILED: NEW YORK COUNTY CLERK 05/07/2024 02:18 PM INDEX NO. 652351/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/07/2024 2. Declaring that ACE had a duty to defend the Underlying Defendants in connection with the Underlying Action; 3. Declaring that ACE’s coverage obligations to the Underlying Defendants with respect to the Underlying Action are primary to any coverage provided by Travelers; 4. Declaring that the obligations of Travelers to the Underlying Defendants in connection with the Underlying Action are excess and non-contributory to those of ACE’ 5. Awarding judgment against ACE in an amount equal to the sums that Travelers incurred in defending the claims against the Defendants in the Underlying Action; 6. Granting an award in favor of Travelers for the costs of the suit incurred herein; and 7. Granting such other and further relief as the Court may deem just and proper. Dated: New York, New York May 7, 2024 USERY & ASSOCIATES /s/ Tung Sing Wong By: Tung Sing Wong Attorney for Travelers Indemnity Company T. 917.778.6680 F. 844.571.3789 E. twong2@travelers.com Mailing Address:1 P.O. Box 2996 Hartford, CT 06104 1 Physical Address: 485 Lexington Ave., 6th Fl., New York, NY 10017 8 of 8