East 51st Street Development Co., LLC v. Lincoln General Insurance (121 A.D.3d 458, 2014)

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered October 4, 2013, which granted the motion of defendant Lincoln General Insurance Company (Lincoln) for leave to amend its answer and cross claim against defendant Interstate Fire and Casualty Company (Interstate), unanimously affirmed, with costs.

The motion was properly granted as Lincoln’s proposed amended answer and cross claim was not “palpably insufficient or patently devoid of merit” (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 499 [1st Dept 2010]). Contrary to Interstate’s contention that this Court declared in its February 5, 2013 order that Interstate has no obligation to pay any costs incurred in the defense of plaintiff East 51st Development Company LLC in underlying litigation and dismissed Lincoln’s cross claim against Interstate seeking to recover such costs, this Court explicitly held that the Lincoln and Interstate policies are both primary and refused to dismiss Lincoln’s cross claim against Interstate seeking to recover costs incurred in the defense of plaintiff (see Matter of East 51st St. Crane Collapse Litig., 103 AD3d 401, 402 [1st Dept

2013]). Concur — Gonzalez, EJ., Saxe, DeGrasse, Richter and Clark, JJ.