Colliers Engg. & Design, Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa

Colliers Engg. & Design, Inc. v National Union Fire Ins. Co. of Pittsburgh, Pa 2026 NY Slip Op 31020(U) March 23, 2026 Supreme Court, Dutchess County Docket Number: Index No. 2025-56680 Judge: Thomas R. Davis Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/2025-56680_WW.html[03/25/2026 3:45:45 PM]

INDEX NO. 2025-56680 NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 03/23/2026

SUPREME COURT- STATE OF NEW YORK DUTCHESS COUNTY

Present: Hon. THOMAS R. DA VIS, J.S.C.

SUPREME COURT: DUTCHESS COUNTY ------------------------------------------------------------------------X DECISION AND ORDER COLLIERS ENGINEERING & DESIGN, INC. (Motion Seq. No. 3) COLLIERS ENGINEERING & DESIGN CT, P.C., and COLLIERS ENGINEER1NG & DESIGN, ARCHITECTURE, LANDSCAPE ARCHITECTURE, SURVEYING, CT P.C., Index No.: 2025-56680

Plaintiffs,

- against -

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, NAVIGATORS INSURANCE COMPANY, AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, FIREMAN' S FUND INSURANCE COMPANY, ALLIED WORLD NATIONAL ASSURANCE COMPANY, and THE OHIO CASUAL TY INSURANCE COMPANY,

Defendants,

- and -

BERKSHIRE HATHAWAY SPECfALTY INSURANCE COMPANY, CERTAIN UNDERWRITERS AT LLOYD ' S SUBSCR1BING TO POLICY NUMBER B0146 LDUSA2305 I 78, and CENTRAL HUDSON GAS AND ELECTRIC CORPORATION ,

Nominal Defendants. ------------------------------------------------------------------------X

Brief overview

This action concerns an insurance coverage dispute which arose from the alleged failure of the defendants to defend and indemnify the plaintiffs in numerous underlying personal injury and property damage lawsuits against the plaintiffs (and others), as well as the defendants' alleged failure to timely disclaim coverage. The underlying lawsuits for personal injuries and

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property damage stem from a natural gas explosion that occurred on November 2, 2023 in Wappingers Falls, New York in which several residents of an apartment building and workers on the job site were serious ly injured, and several structures were severely damaged.

The complaint herein is for breach of contract and declaratory relief pertaining to the defendants' aforesaid alleged fai lure to provide defense and indemnification to the plaintiffs in the underlying lawsuits. The defendants have moved, pre-answer, to dismiss the second and third causes of action in the complaint, and to dismiss plaintiffs request for attorneys' fees. T he following papers were read and considered in determining the motion:

NYSCEF document numbers 67-72, 146-1 92 and 200-206 (and a ll other NYSCEF documents referenced therein).

Relevant background

Plaintiffs ' complaint al leges, inter alia, as fol lows: That each of the defendants provided primary and excess commercial general liability insurance policies to the plaintiffs for the period of March 1, 2023 to March 1, 2024, and that such policies provided a maximum, aggregate limit of $ 11 0 million in coverage; that in Apri l 2020, plaintiffs entered into a contract with Central Hudson Gas & Electric Corp. ("Central Hudson") pursuant to which plaintiffs were to perform gas inspection and asset recording throughout Central Hudson's territory, and which contained an indemnification provision in favor or Central Hudson; that on November 2, 2023 , in connection with work performed under the aforesaid contract, there was a large natural gas explosion in Wappingers Falls, New York which caused serious personal injuries (and property damage), resulting in the commencement of nineteen liability lawsuits naming the plaintiffs and Central Hudson as defendants; that the defendants herein were all served with multiple notices of claim for coverage under the ir respective policies, but have failed to take formal coverage positions, and have ignored the plaintiffs ' (and Central Hudson 's) requests to tender defenses and indemnification to them in the underlying li abi lity lawsuits.

The complaint further alleges that because the defendants have breached their agreements to provide the plaintiffs with a legal defense in the underlying liability lawsuits, plaintiffs have been forced to rely on the legal defense provided to them through nomi nal defendant Berkshire Hathaway Specialty Insurance Company (" Berkshire"), who, fo r the relevant time period, issued the plaintiffs a professiona l liabi lity insurance policy (as opposed to general commercial liability). Plaintiffs assert that the defense costs under the Berkshire policy erode the limits of the Berkshire coverage (pursuant to the policy's terms), which reduces the amount available for indemnification, whereas coverage under the commercial general liability policies does not erode such limits of coverage. 1

T he complaint asserts three causes of action. The first is for breach of contract; in particular, breach of the commercial general liability polic ies by refus ing to provide plaintiffs " a coverage position, defense, or indemnification from and against the liabi lity claims and damages

1 Nominal defendant ·'Certain Underwriters al Lloyd' s ... " ("Lloyd ' s") is alleged to be an excess professional

liability insurer to the p la intiffs.

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alleged in the underlying actions" resulting in money damages in an amount to be determined at trial (NYSCEF Doc. No. I, 176).

The second cause of action is for a declaratory j udgment, declaring the fo llowing: That the defendants must defend the plaintiffs against all claims aris ing from the gas explosion on November 2, 2023; that the defendants must indemni fy the plaintiffs from all damages or other fi nancial losses arising from the explosion; that due to untimely d isclaimers, the defendants are estopped from rely ing on any policy conditions, limitations or exclus ions to avoid coverage; and "any and all other contested or disputed rights or obligations .. . " among the parties, including priorities and allocations of defense and indemnity obligations among the defendants and the nominal defendants (Berkshire and Lloyd ' s).

The thi rd cause of action, labeled " Untimely Disclaimer- Insurance Law §3420 (d) (2)", seeks, in effect, a declaratory j udgment that pursuant to the said statute, the defendants each failed to disclaim coverage " as soon as reasonably possible" thereby "estopping each of them from attempting to re ly upon any po licy conditions, limitations, or exclusions to attempt to avoid coverage" (NYSCEF Doc. No. I, 191).

As relevant to the instant motion, the "wherefore'· clause of the complaint seeks- in addition to the relief noted above for each cause of action- "attorneys' fees, costs, and disbursements" (NYSCEF Doc. No. 1, pg. 20).

After filing and serving the comp laint, the plainti ff fi led a " Notice of Partial Disconti nuance Without Prejudice" as to the nomi nal defendants Berkshire and Lloyd' s (NYSCEF Doc. Nos . 18 and 22), the content of each Notice stating that it was, "without prej udice, and subj ect to a full reservation of rights to reinstatement or recommencement" of the action (id.).

T he defendants, co llectively, fi led the instant pre-an swer motion pursuant to C PLR §32 11 (a)(7), in which they seek dismissal of the Second and Third Causes of Action in the complaint, as well as dismi ssal of the plaintiffs' requested relief for attorneys' fees in subparagraph (iv) of the ad damnum clause in the complaint.

Part y contentions

T he defendants argued that the second and third causes of action in the complaint should be dismissed because they are duplicative of the fi rst cause of action. In particular, they argued that in order for the court to adjudicate whether the defendants breached the underlying insurance policies by refusing to provide the plaintiffs a coverage position, defense or indemnification (the basis for the fi rst cause of action), the court will necessaril y have to determine whether a duty to defend ex isted and was breached, and therefore, it is not necessary for the court to render a declaratory j udgment as to whether the defendants have a duty to defend and indemnify the plaintiffs. T hey asserted that the second cause of action effectively seeks a " verbal articulation of the Court' s reasoning" on its adj udication of the first cause of action.

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S imilarly, the defendants asserted that the plainti ffs · allegations in their second cause of action that apart from breaching the underlying polic ies, the defendants failed to comply with Insurance Law §3 420(d)(2), w ill also be necessarily determined in the first cause of action. That is, in order for the court to detem1ine whether a breach occurred, it would a lso need to determine which provisions o f the policy apply and whether the defendants have lost the abili ty to rely on their policy language by failing to comply with Insurance Law §3420(d)(2). Defendants asserted that "the applicability of Section 3420 ... is already a necessary component ofresolving Plainti ffs claims in the First Cause of Action concerning the scope and availability of coverage under the [defendants'] po licies" (NYSCEF Doc. No. 72, pg. 2). They further argued that the plaintiffs' third cause o f action is a lso duplicative because it seeks the very same declaratory re lie f as to Insurance Law §3420 that is sought in the second cause o f action, which is already duplicative of the first cause of action.

Defendants further argued that the plaintiffs' second cause of action should be dismissed because insofar as it seeks a ruling on the priority and a llocation of coverage, it is improper given that the pla inti ffs have di scontinued the action against the nominal defendants, Berkshire and Lloyds, who, now as "non-parties", would not be bound by any such adj ud ication.

Defendants further argued that the plaintiffs' request fo r attorneys' fees in their ad damnum clause should be dismissed because absent a statutory or contractual prov ision fo r same, which they asserted does not exist here, there is no basis to recover attorneys' fees .

In opposition, the plaintiffs argued that there is no basis for dismissing their second and third causes o f action because: The compl aint meets the pleading standard for a declaratory judgment- namely, that there is a justiciable controversy; that claims for breach of contract and declaratory judgment may be pleaded in the alternative; that courts routinely permit insureds to plead declaratory re lief alongside breach of contract; that a c laim fo r declaratory re lief is not duplicative where, as here, it seeks relief separate and distinct from damages recoverable under a breach c laim, and the two claims do not completely overlap; that the declaratory j udgment c laims here encompass the distinct issue of equitable estoppel against National Union- who has recently assumed the plaintiffs' defense in some of the underlying liability actions without reserving its rights-which issue is distinct from the issues to be determined on the breach of contract claim; that the breach of contract claim here addresses past actions, while the declaratory judgment claims deals with future damages and the parties' future rights and obligations; that the second cause of action is not unnecessary because the first cause of action for breach does not provide fu ll , adequate and complete relief; and the third cause of action is not du plicative of the first.

Plaintiffs further argued that their demand for attorneys' fees should not be dismissed because: T hey are entitled to attorneys ' fees in the underlying liability actions based on defendants' breach of the duty to defend; pl aintiffs may be entitled to attorneys' fees in this action if the defendants either counterclaim to avoid their coverage obligations, lose on the merits but continue to pursue meritless motion practice, if they wrongfully deny the plaintiffs' pending notices to admit, or if they engage in frivolous conduct under Part 130.

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Plainti ffs further argued that nominal defendants Berkshire and Lloyd 's are not necessary parties to this action because: Plaintiffs may proceed against one coinsurer, putting the onus on that insurer to seek contribution from other coinsurers; the court may reach the issue o f the duty to defend and indemnify without determining priorities of coverage; other actions in which some of these defendants have been involved held that the court can determ ine issues of defense and indemnificatio n (and untimely discla imer) and defer the question of priority of coverage to separate litigation between the insurers; plainti ffs do not intend, no r need to, litigate the issue of priority between their professional and genera l commercial liability carriers; and Berkshire and Lloyd's were named and served in thi s action, given the oppo rtunity to participate, and expressly and knowing ly declined.

In reply, the de fendants, inter alia, disputed and/o r di stinguished vario us case law rel ied upon by the pla intiffs and, in part, reiterated some of the ir arg uments proffered in their moving papers.

Discussion/anal ysis

The claims are not duplicative

" A cause of action for a declarato1y judgment is unnecessary and inappropriate when the plaintiff has an adequate, alternati ve remedy in another form of actio n, such as breach of contract" (Apple Records v. Capitol Records, 137 AD2d 50 [!51 Dept 1988]).

However, a cause of action is not duplicative w here it "seeks relief separate and distinct from damages recoverable under" the other claim(s) (Slocum Realty Corp. v. Schlesinger, 162 A D3d 939, 944 [2d Dept 2018]).

With regard to dismissal of the second and third causes of action, the court finds dispositive the fact that reading the complaint in the light most favorable to the p laintiffs, as the court must o n a 32 11 (a)(7) motion (see Kevin Spence & Sons, Inc. v. Boar 's Head Provisions Co., Inc., 5 A D3d 352 [2d Dept 2004]), the re lief soug ht in the second and third causes of action is distinct from that sought in the fi rst cause of action, and resolutio n of the first cause of action will not necessarily resolve the issues raised in the second and third causes of action. Therefore, w ith one mino r exception noted here in, the second and third causes of action are not duplicative of the first.

The first cause of action for breach of contract, w hich seeks m onetary damages, can be read, in the lig ht most favorable to the plainti ffs, as seeking relief sole ly for past conduct- that is, compensatio n and/or re imbursement to the plaintiffs for the defendants ' breach of the ir obligation to undertake the defense of the plaintiffs in the underlying liability lawsuits, w hich resulted in the plainti ffs having incurred defense costs under their professional liability policies with Berkshire and the erosio n of indemnification coverage available to them under those particular polic ies. Determining whether such breach occurred would, as defendants noted, require the court to determine whether the duty to defend existed under the policy provisions in the first instance. However, contrary to the defendants' contention, it would no t necessarily

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require the court to determine the other issues that are raised/implicated in the second and third causes of action for declaratory re lie f, which include (among others) the rights and o bligations of the parties going forward- particularly, the obligation of the defendants to indemnify the plainti ffs in the underlying liability actio ns pursuant to the provisio ns of the subject policies, and w hether or not the -defendants are estopped under Insurance Law §3 420 from disclaiming coverage.

As to the former- the right lo indemnification under the policies' provisions- given that the underly ing liability actions are all still pending, there is no present breach by the de fendants of their alleged o bligatio n to indemnify the plaintiffs under those contracls. 2 Therefore, it is disingenuo us for the defe ndants to assert that that pai1icular issue will necessarily be resolved in the determinatio n of the breach of contract claim. To the contrary, if the plaintiffs were to move for summary judgment immediately after issue is joined by the defendants herein- a plan they have o penly expressed it is their intenti on to undertake- it is entire ly conceivable that if they prevail on their first cause of actio n fo r breach of contract, the re lief lo w hich they may be entitled might only be money damages to compensate them for the defendants' past failures to defend them in the underlying liability actions, and not mo ney dam ages fo r failure to indemni fy them because, by such time (and certainly, at the present time), they still may not have paid out any sums to any of the plaintiffs in the liability actions for which they mig ht be entitled to indemnification. In that situation, it would only be pursuant to their second and/or third causes o f acti on that they could o bta in an adequate remedy- a judic ial declaratio n that the de fendants are required, under the terms of the polic ies, to indemnify them for such payments.

As to the latter-esloppe l from disclaiming under Insurance Law §3420- the breach of contract claim as it is alleged in the complaint does not invoke review of that issue such that the declaratory judgment causes of action could be said to be duplicative thereof. The court is simply not persuaded by defendants' argument that a determination as to w hether they can still timely disclaim coverage for indemnification under Insurance Law §3420 is necessarily encompassed within a determinatio n as to whether they have already breached their respective contract obligations to defend the plaintiffs in the underlying liability actions.3

Indeed, it is well-settled that the duty to defend is broader than the duty to indemnify (see, e.g., Belsito v. State Farm Mut. Ins. Co., 27 AD3d 502 (2d Dept 2006]). Therefore, while

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coverages among the insurers, including the priority of defense and indemnity obligations to Colliers." (NYSCEF Doc. No. 69.) The defendants argued that Berkshire and Lloyd's are necessary parties, citing a variety of cases for the general proposition that all parties potentially affected are necessary before a declaratory judgment can be granted. For example, they cited David Christa Constr., Inc. v Am. Home Assur. Co., 41 AD3d 1211 [4th Dept 2007]. In that case, it was the defendant' s motion in question, in wh ich it had argued that its insurance policy be declared a secondary policy to one provided by a non-party insurer. The appellate court found that the non-party insurer should have been named as a party before such a determination was made. ("American Home Assurance Company (defendant) appeals from an order denying its motion for summary judgment seeking a declaration that its insurance policy is excess to two policies carried by plaintiff and that defendant "does not owe plaintiff a de fense or indemni ti cation (other than possible excess indemnification) for the claims" in the underlying action.")

Plaintiffs argued that this court may proceed to determine the issues in this case without Berkshire and Lloyd ' s, re lying, in part, on Natl. Union Fire Ins. Co. ofPillsburgh, Pa. v Hartford Ins. Co. ofMidwest, 248 AD2d 78 [ I st Dept 1998), a.ffd, 93 NY2d 983 [ 1999]. In that case, the court held that "[t)he court had no duty to decide the coinsurance issue in the context of the Chaos declaratory judgment action, and the law is clear that the preclusive effect of a declaratory action is limited to the subject matter of the declaratory relief sought (see, Jefferson Towers v Public Serv. Mut. Ins. Co .. 195 A D2d 3 11 , 3 13). Here, the declaration was that National Union was o bligated to defend and indemnify Chaos, notwithstanding the presence of a potential coinsurer" (Natl. Union Fire Ins. Co. of Pillsburgh, Pa. , id. , at 83). Both parties are partially right. The determination of whether Berkshire and Lloyd ' s are necessary parties is contingent on what issues are to be decided and when. First, plaintiffs are correct that their request for a declaratory judgment seeking a determination that the moving defendants are too late to deny coverage is unique to each of the named defendants herein ; the absence of Berkshire and Lloyd ' s as defendants is irre levant to that determination. T he moving defendants ' attempts to distinguish Natl. Union, id. , and other cases based on the proposition that it has yet to be determined whether the Berkshire and Lloyd' s policies are "coinsurance" policies is unavailing. The preliminary and primary question here, as was di scussed at the Cou11' s recent conference, is whether the named insurance carrier defendants have fo rfe ited the ability to deny coverage. ln other words, before deciding who is on first, it must be dec ided who is on the team. Second, even if the arguments advanced by the moving defendants regarding Berkshire and Lloyd ' s being " necessary parties" were valid, the remedy of dismissal for failure to join a necessary party is a " last resort" (see, e.g.. Siegel, New York Practice § 133). A more appropriate remedy would be that at such time as the issues of priority are to be determined, any pa11y could seek to have Berkshire and Lloyd' s brought back into the action. This can be done in the context of the declaratory judgment action or the breach of contract action, when and if issues of priority an se. In this regard, it is notable that the moving defendants maintained that an alternati ve proper remedy other than dismissal would be to "re-serve" the former defendants, Berkshire and Lloyd's. Berkshire and Lloyd's were served with the summons and complaint w hich contained

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the request for the Court to set the priority of coverage among the various policies. They clearly chose not to participate in the litigation at this time. And clearly, the issue of priority comes after the determination of whether the various insurers have a duty to provide coverage in the first instance.

Finally, given the particular nature of this case - over 15 actions involving 18 plaintiffs (some suffering catastrophic injuries), against eleven named defendants scheduled for trial on September 8, 2026 - resolution of the issue of whether the various carriers named have waived their abili ty to timely disclaim coverage is the preliminary and central one which should be dealt with expeditiously. This is particularly true where the plaintiffs have indicated they will be seeking summary judgment on this issue in the very near future.

Accordingly, the di smissal on the basis of fai lure to currently have Berkshire and Lloyd's as parties to the actio n is denied.

Attorney 's fees Plaintiffs argued, in part, that the legal fee request in the " (w]herefore" clause of the complaint is valid because if one or more of the defendants is required to provide defense in the personal injury actions arising from the explosion, the plaintiffs would be entitled to recover legal fees, disbursements and costs they have incurred in defending those actions ( or the corresponding reduction in avai lable coverage). They further argued that attorneys' fees could be awarded in this actio n for frivolous conduct and/or if the defendants were to counterclaim to avoid coverage. As noted above, at the pleading stage, the complaint must be viewed in the light most favorable to the Plaintiff. "On a CPLR 321 l (a)(7) motion to dismiss for failure to state a cause of action, the complaint must be construed in the light most favorable to the plaintiff and all factua l allegations must be accepted as true (see 2 I 9 Broadway Corp. v. Alexander's, Inc., 46 N .Y.2d 506,509,414 N.Y.S.2d 889,387 N.E.2d 1205 [1979] ). Further, on such a motion, the complaint is to be construed liberally and all reasonable inferences must be drawn in favor of the plaintiff (Leon v. Martinez, 84 N.Y.2d at 87- 88, 6 14 N.Y.S.2d 972,638 N .E.2d 5 11)" (Alden Glob. Value Recove,y Master Fund, L. P v Key Bank NA., 159 AD3d 6 18, 62 1-22 [ 1st Dept 20 18]).

Given the early stage of this action and the potential for recovery of attorneys' fees depending on the course of the litigation (defenses pursued, conduct engaged in), it would be premature to find, as a matter of law, that such relief can not be pursued. Naturally, if attorneys' fees are ultimately not warranted based on the parties' conduct and claims, they wi ll not be awarded. rn short, it is not necessary to dismiss this request for relief in order to avoid its improper application.

In light of the above determinations, it is not necessary to address each of the several other arguments raised by the parties (see CPLR 22 l 9;(a); and, generally, Charalabidis v. Elnagar, 188 AD3d 44, 49 [2d Dept 2020] (" While courts may address the merits of each separate branch of a motion or cross motion, and will often do so, [C PLR 2219] does not require the court to do so if o ne branch is controlling or dispositive of the others. Courts may dispose of one or more branches of lesser importance as being without merit or rendered academic by other aspects of the order."); NYCTL 20 I 2-A Trust v. 1698 Lex Corp. , 169 AD3d 577 [ I st Dept 20 19]).

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Based on the foregoing, it is hereby

ORDERED, that the defendants' motion (sequence #3) is granted solely to the extent that so much of the second cause of action in the complaint w hich seeks a declaration that pursuant to Insurance Law §3420(d)(2), the defendants are each estopped from relying upon any policy conditions, limitation, or exclus io ns to attempt to avoid coverage, is dismissed, and the motion is otherwise denied; and it is further

ORDERED, that prior to any application or motio n by any pa11y seeking relief that will necessarily implicate the interests of Berkshire o r Lloyd's as to the priority of the ir respective policies in relatio n to the priority of the policies of the defendants herein, the applicant/movant shall move to join Berkshire and Lloyd 's as defendants ; and it is further

ORDER ED that the defendants shall file and serve their respective answers within the time prescribed by CPLR §32 11 (f).

Dated: March 23 , 2026 Poug hkeepsie, N Y

Hon. Thomas R. Davis, J. S.C.

TO: All counsel of record via NYSCEF filing

Pursuant to CPLR Section 55 I 3, an appeal as ofright must be taken w ithin thirty days after service by a party upo n the appellant o f a copy of the judg ment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thi11y days thereof.

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Footnotes

[2] T his is a po int expressly acknowledged by the pla inti ffs (NYSCEF Doc. No. 192, pg. 17), and apparently also recognized by the defendants (NYSCEF Doc. No. 206, pg. 12). 3 In th is regard , the de fendants asserted in their motion that "the pu rported applicabil ity of Section 3420(d) to the instant coverage d ispute is a necessary com ponent of resolving Plaint iffs' claims concern ing the scope and availabi lity of coverage under the GL Insurers' po lic ies" (N YSCEF Doc. No. 72, pg. 11 ). Other than mak ing this rather conc lusory statement, the defendants d id not artic ul ate how the applicability of Section 3420(d) is a " necessary component" of resolving th e c la ims for the "scope and ava ilab ility" of coverage, leav ing the court to speculate and, ultimately, disagree w ith that unexpla ined conc lusio n. In the court' s view, the scope and applicability of coverage under a particular po li cy may mere ly involve a review of the po licy' s terms and application of those terms to the facts of any g iven, underlying liability situatio n to determin e w hether or not the po licy covers that situatio n, w itho ut ever conside rin g the time liness o f a purported disclaimer under Insurance Law §3420(d). T he court might only make a detern1inati on as to th e time liness o f a d isc laimer if a party ra ises that issue. Here, th at is what the pla intiffs have done via th eir second and third causes of actio n. The ir lirst cause o f action, o n its face, does not im plic itly ra ise that issue . Page 6 of 10 [* 6] 6 of 10 there could be a finding in the first cause of action that the defendants breached (or not) their duty to defend under the respective policies' provisions, making that determination would not provide the plaintiff with complete relief as to their second and third causes of action, which can fairly be read as requesting a declaration as to the rights and obligations of the parties going forward, taking into consideration not only the alleged obl igation to indemnify under the policies' provisions (the second cause of action), but also whether the defendants are now prevented from disclaiming coverage by virtue of Insurance Law §3420 (the third cause of action). With the above in mind, the court nonetheless notes that there does appear to be one "overlap" within the p leading as to the re lief sought by the plaintiffs, and that is the ir claim at paragraph 82(c) of their complaint (reiterated at paragraph ii(c) of their ad damnwn clause) and their third cause of action. Paragraph 82(c), and its corresponding paragraph in the ad damnum clause, seeks a declaration that pursuant to Insurance Law §3420(d)(2), the defendants are each estopped from relying upon any pol icy conditions, limitation, or exclusions to attempt to avoid coverage. T he third cause of action in the complaint seeks thi s very same relief and, in that regard , it is duplicative. However, several of the factual allegations contained within (and underlying) the third cause of action are not contained elsewhere in the complaint and are clearly present in orde r to support the very specifically stated third cause of action fo r " untimely disclaimer" under "Insurance Law §3420(d)(2)" . Therefore, the court deems it appropriate to dismiss only so much of the second cause of action which seeks a declaration that pursuant to Insurance Law §3420(d)(2), the defendants are each estopped from relying upon any policy conditions, limitation, or exclusions to attempt to avoid coverage, as that c la im is asse1ted more thoroughly in the third cause of action. Necessary party issue The moving defendants also seek, pursuant to CPLR § 32 1 l (7), to dismiss the complaint because Berkshire and Lloyd's- who they asserted are necessary parties- are no longer parties hereto. The action was discontinued against Berkshire and Lloyd ' s by notice of partial discontinuance without prej udice. This aspect of defendants' motion is more properly characterized as a CPLR §32 11 (l 0), motion: "the court should not proceed in the absence of a person who should be a party." The Court treats it as such. Both Berkshire and Lloyd ' s were named by the plaintiffs as "nom inal parties." The complaint refers to them as fo llows: ·' 19. Berkshire Hathaway and Lloyd' s are named herein solely as nominal defendants because their rights, including their duties to defend and indemnify Colliers, may be affected by a determination in this action. 20. Colliers does not at this time seek damages or relief directly against Berkshire Hathaway or Lloyd's, and their inclusion is intended only to ensure that any declaratory judgment or other relief entered by this Court fully and finally determines the. scope, priority, and a llocation of Page 7 of 10 [* 7] 7 of 10