STARR INDEMNITY LIABILITY COMPANY v. Great American Insurance Company, Defendant. (2024)

Order, Supreme Court, New York County (Robert R. Reed, J.), entered January 8, 2024, which, insofar as appealed from, denied defendants/counterclaim plaintiffs Monte Carlo, LLC, Dorchester, LLC, and Main Street, L.I., LLC's cross-motion to dismiss plaintiff/counterclaim defendant Starr Indemnity & Liability Company's (Starr) affirmative defenses, unanimously modified, on the law, the cross-motion granted to the extent of dismissing Starr's third, fourth, fifth, and seventh affirmative defenses, and otherwise affirmed, without costs.

Defendants’ cross-motion to dismiss Starr's third, fourth, fifth, and seventh affirmative defenses should have been considered, as the plain language of CPLR 2215 states that where a litigant cross-moves, it may request “alternative” or “different types” of relief, and the “relief need not be responsive to that demanded by the moving party” (CPLR 2215[b];  see 2 Carmody–Wait 2d § 8:21;  Siegel, New York Practice § 249 [6th ed, Dec. 2023 update]).  Considering the merits, the third, fourth, fifth, and seventh affirmative defenses should have been dismissed since they address coverage issues decided in the prior appeal (see Starr Indem. & Liab. Co. v. Monte Carlo, LLC, 190 A.D.3d 441, 139 N.Y.S.3d 57 [1st Dept. 2021], lv dismissed 37 N.Y.3d 932, 146 N.Y.S.3d 871, 169 N.E.3d 1235 [2021]).

We have considered the parties’ remaining arguments and find them unavailing.