        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

864
CA 13-00398
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


SUSAN M. BATT, AS ADMINISTRATRIX OF THE ESTATE
OF EUGENE L. BATT, JR., DECEASED,
CLAIMANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, ET AL., DEFENDANTS.
----------------------------------------------
STATE OF NEW YORK, NEW YORK STATE
DEPARTMENT OF TRANSPORTATION AND NEW
YORK STATE THRUWAY AUTHORITY,
THIRD-PARTY CLAIMANTS-RESPONDENTS,

                    V

AIG DOMESTIC CLAIMS, INC., NEW HAMPSHIRE
INSURANCE CO. AND AMERICAN HOME ASSURANCE CO.,
THIRD-PARTY DEFENDANTS-APPELLANTS.
(CLAIM NO. 115417.)


HISCOCK & BARCLAY, LLP, ROCHESTER (JOSEPH A. WILSON OF COUNSEL), FOR
THIRD-PARTY DEFENDANTS-APPELLANTS.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF
COUNSEL), FOR DEFENDANTS-THIRD-PARTY CLAIMANTS-RESPONDENTS.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (RODGER P. DOYLE, JR., OF
COUNSEL), FOR CLAIMANT-RESPONDENT.


     Appeal from a judgment of the Court of Claims (Jeremiah J.
Moriarty, III, J.), entered May 7, 2012. The judgment, among other
things, denied the motion of third-party defendants for summary
judgment insofar as it sought a declaration that third-party defendant
American Home Assurance Co. is not required to defend or indemnify
defendants-third-party claimants State of New York or the New York
State Thruway Authority under the New York Special Protective Highway
policy and granted the cross motion of defendants-third-party
claimants for partial summary judgment in part and declared that
third-party defendant American Home Assurance Co. is obligated to
defend, inter alia, defendant-third-party claimant New York State
Thruway Authority under that policy.

     It is hereby ORDERED that said appeal insofar as taken by third-
party defendants AIG Domestic Claims, Inc. and New Hampshire Insurance
                                 -2-                           864
                                                         CA 13-00398

Co. is unanimously dismissed and the judgment is affirmed without
costs.

     Memorandum: On July 26, 2006, claimant’s decedent sustained
fatal injuries when the motorcycle that he was operating collided with
a vehicle on the exit 56 ramp of the New York State Thruway. In June
2006, defendant-third-party claimant New York State Thruway Authority
(NYSTA) contracted with a contractor to perform construction work on
the exit 56 interchange. Pursuant to the contract, the contractor
obtained insurance from third-party defendants New Hampshire Insurance
Co. (New Hampshire) and American Home Assurance Co. (American), naming
NYSTA as an additional insured. After plaintiff commenced a personal
injury and wrongful death action against defendants-third-party
claimants (hereafter, third-party claimants), third-party defendants
disclaimed coverage. Thereafter, third-party claimants commenced a
third-party action seeking a declaration that New Hampshire and
American were required to provide NYSTA with a defense in the
underlying action and to indemnify defendant-third-party claimant
State of New York (State). Third-party defendants moved for, inter
alia, summary judgment declaring that they are not obligated to defend
or indemnify third-party claimants. Third-party claimants cross-moved
for, inter alia, partial summary judgment declaring that American is
required to defend NYSTA in the underlying action. As relevant to
this appeal, the Court of Claims denied third-party defendants’ motion
for summary judgment insofar as it sought a declaration that American
is not obligated to defend or indemnify the State or NYSTA under the
New York Special Protective Highway policy and granted third-party
claimants’ cross motion in part and declared that American is
obligated to defend, inter alia, NYSTA under that policy. Third-party
defendants appealed. We conclude that New Hampshire and third-party
defendant AIG Domestic Claims, Inc. are not aggrieved by the judgment
and thus the appeal, insofar as taken by those parties, must be
dismissed (see CPLR 5511), and we otherwise affirm.

     An insurer’s duty to defend is “ ‘exceedingly broad’ and an
insurer will be called upon to provide a defense whenever the
allegations of the complaint ‘suggest . . . a reasonable possibility
of coverage’ ” (Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131,
137, quoting Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640,
648; see Henderson v New York Cent. Mut. Fire Ins. Co., 56 AD3d 1141,
1142). Thus, the duty to defend exists “ ‘even though facts outside
the four corners of [the] pleadings indicate that the claim may be
meritless or not covered’ ” (Automobile Ins. Co. of Hartford, 7 NY3d
at 137, quoting Fitzpatrick v American Honda Motor Co., 78 NY2d 61,
63; see also BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 714).
We conclude that where, as here, the claim, “[i]f[] liberally
construed, . . . is within the embrace of the policy, the insurer must
come forward to defend its insured no matter how groundless, false or
baseless the suit may be” (Ruder & Finn v Seaboard Sur. Co., 52 NY2d
663, 670, rearg denied 54 NY2d 753) and without regard to whether the
insurer “may not be required to pay once the litigation has run its
course” (Automobile Ins. Co. of Hartford, 7 NY3d at 137).

     With respect to indemnification, that determination will abide
                                 -3-                           864
                                                         CA 13-00398

the trial (see id. at 138; Incorporated Vil. of Cedarhurst v Hanover
Ins. Co., 89 NY2d 293, 300).




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
