You are here: / / Duty to Defend

Duty to Defend

The First Department determined that the insurer was obligated to defend the defendants even though subsequently it may be able to demonstrate the insured did not cause the injuries.  The duty to defend is determined by comparing the policy to the complaint.  If the pleaded claims are potentially within the scope of coverage, the insurer’s duty to defend is triggered:

An insurer may obtain a declaration absolving it of its duty to defend only when a comparison of the policy and the underlying complaint on its face shows that, as a matter of law, “there is no possible factual or legal basis on which the insurer might eventually be held to be obligated to indemnify the insured under any provision of the insurance policy” … . As this Court has observed, “[T]he primary obligation of an insurer is to provide its insured with a defense” …, an obligation that is incurred “if facts alleged in the complaint fall within the scope of coverage intended by the parties at the time the contract was made” … . “By contrast, the duty to indemnify requires a determination of liability” … .

Because the underlying complaints pleaded claims that were potentially within the scope of coverage, plaintiff is obligated to defend the underlying actions. Whether plaintiff might ultimately be able to establish that its insured did not cause the injuries alleged in the underlying actions involves questions of fact yet to be resolved; it is not an issue that can be determined as a matter of law by examination of the insurance contract. Thus, it does not afford a basis to relieve plaintiff of its duty to provide a defense… . Greewich Ins Co v City of New York, 2014 NY Slip Op 07933, 1st Dept 11-18-14

 

You might also like
INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES NOT ENTITLED TO RECOVER ALL CLAIMS PAID OUT AS A RESULT OF 50% OF THE UNDERLYING MORTGAGES GOING INTO DEFAULT UNDER A FRAUD THEORY, ONLY A BREACH OF CONTRACT THEORY WAS AVAILABLE (FIRST DEPT).
Landlord May Not Withhold Consent for Continued Operation of a Sidewalk Cafe Where the Lease Contemplated the Operation of the Cafe (Which Had Been in Operation for 50 Years) and Where the Implied Covenant of Good Faith and Fair Dealing Restricted the Landlord’s Ability to Withhold Consent/Erroneous Stipulated Fact Does Not Bind the Appellate Court
PLAINTIFF, AN EDITORIAL DIRECTOR AT GAWKER, DID NOT SUFFICIENTLY ALLEGE THE DAILY BEAST REPORTERS WHO WROTE AN ARTICLE ABOUT GAWKER VIOLATED THE “GROSS IRRESPONSIBILITY STANDARD” IN MAKING STATEMENTS ABOUT PLAINTIFF; THE DEFAMATION COMPLAINT WAS DISMISSED (FIRST DEPT).
CITY NOT LIABLE FOR SLIP AND FALL IN CROSSWALK DURING STORM, ALLEGED FAILURE TO COMPLY WITH SNOW REMOVAL PROTOCOLS AND FAILURE TO APPLY SALT BEFORE THE STORM ARE NOT GROUNDS FOR LIABILITY (FIRST DEPT).
THE ATTEMPTED GANG ASSAULT CHARGE WAS A LEGAL IMPOSSIBILITY FOR TRIAL PURPOSES (FIRST DEPT).
GIVING A SECOND ALLEN CHARGE AND ALLOWING THE JURY TO CONTINUE DELIBERATING TO 5 OR 6 PM ON A FRIDAY, KNOWING THAT THREE JURORS HAD TRAVEL PLANS FOR MONDAY, DID NOT CONSTITUTE COERCING THE VERDICT, PROVIDING BOTH WRITTEN AND ORAL JURY INSTRUCTIONS WAS NOT IMPROPER (FIRST DEPT).
A COMBINED MOTION TO REARGUE AND MOTION TO RENEW IS PROPER; HERE SUPREME COURT CORRECTLY DENIED THE MOTION TO REARGUE BUT SHOULD HAVE CONSIDERED THE MOTION TO RENEW; MATTER REMANDED (FIRST DEPT). ​
DEFENDANT’S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Reversible Error to Deny Defendant’s Request for a Jury Instruction on... Wooden Flooring With Gaps Between the Planks Constituted an Elevation-Related...