TRAVELERS CASUALTY SURETY COMPANY v. AIU (2025)

Order, Supreme Court, New York County (Andrew Borrok, J.), entered on or about September 12, 2024, which, to the extent appealed from, denied the motion of defendant Vale Canada Limited for leave to renew its motion to dismiss the complaint, unanimously affirmed, with costs.

We previously affirmed the denial of Vale Canada's motion to dismiss the complaint, finding that it had not satisfied its burden of establishing forum non conveniens (see Travelers Cas. & Sur. Co. v. Vale Can. Ltd., 215 A.D.3d 507, 509, 186 N.Y.S.3d 199 [1st Dept. 2023]).  On its motion to renew, Vale Canada relies primarily on the deposition testimony of plaintiff Travelers Casualty & Surety Company's corporate designee, which was taken after this Court's decision.  Supreme Court providently exercised its discretion in denying Vale Canada's post-appeal motion to renew because it did not sustain its heavy burden of showing that “by exercising due diligence, [it] could not have obtained the purported new facts at the time of the original motion” (Gordon v. 476 Broadway Realty Corp., 161 A.D.3d 417, 418, 73 N.Y.S.3d 883 [1st Dept. 2018], lv dismissed 32 N.Y.3d 1078, 89 N.Y.S.3d 108, 113 N.E.3d 942 [2018]).  Vale Canada's post-appeal renewal motion was not based on new facts obtained from the deposition testimony, but rather, was impermissibly based on new theories of law – namely, justiciability and a breach of the parties’ agreement (see Venuti v. Novelli, 179 A.D.2d 477, 478–479, 578 N.Y.S.2d 179 [1st Dept. 1992]).

Vale Canada's arguments, even if considered as based on new facts, would not have led to a different result (see Sciss v. Metal Polishers Union Loc. 8A, 149 A.D.2d 318, 321, 539 N.Y.S.2d 899 [1st Dept. 1989]).  The jurisdictional argument is unavailing because “a disclaimer of coverage is not necessary in order for [an insurer] to preserve its defenses under the policy” (see Continental Cas. Co. v. Employers Ins. Co. of Wausau, 60 A.D.3d 128, 135, 871 N.Y.S.2d 48 [1st Dept. 2008], lv denied 13 N.Y.3d 710, 2009 WL 3428552 [2009]).  Thus, Travelers’ failure to provide a denial or disclaimer of coverage to Vale Canada before commencing this action was not a jurisdictional defect requiring dismissal.  Moreover, as Travelers’ corporate designee testified at deposition, Travelers commenced this action only because Travelers and Vale Canada were not able to resolve the live and legitimate coverage issues.

Nor did the complaint rely on settlement communications or confidential settlement documents, conduct prohibited by the parties’ Standstill and Confidentiality Agreement.  The complaint is premised on the simple fact that Travelers did not see a basis for finding insurance coverage for Vale Canada's claims.

We have considered Vale Canada's remaining contentions and find them unavailing.