LEXINGTON INSURANCE COMPANY v. Langan Engineering and Environmental Services, Inc., Defendant–Appellant. (2019)

Order and judgment (one paper), Supreme Court, New York County (Ellen M. Coin, J.), entered June 19, 2017, which granted plaintiff's motion for summary judgment declaring that it is not obligated to pay any part of the deductible under the policy issued by defendant Steadfast Insurance Company to defendant Langan Engineering and Environmental Services, Inc., and so declared, and granted Steadfast's motion for summary judgment declaring that Langan must reimburse it for the deductible, and so declared, unanimously reversed, on the law, without costs, the motions denied, and the declarations vacated.

The motion court erred in concluding that plaintiff was not obligated to pay any part of Langan's deductible under the Steadfast policy and that Langan owed Steadfast the amount of the deductible without first determining Steadfast's and plaintiff's duties to defend and to indemnify and, if necessary, the priority of coverage (see Sport Rock Intl., Inc. v. American Cas. Co. of Reading, Pa., 65 A.D.3d 12, 18, 878 N.Y.S.2d 339 [1st Dept. 2009], appeal withdrawn 14 N.Y.3d 796, 899 N.Y.S.2d 130, 925 N.E.2d 934 [2010] ).  That determination requires consideration of all relevant policies and, with regard to the duty to indemnify, the facts as found in the underlying personal injury action (see id. at 29, 878 N.Y.S.2d 339;  BP A.C. Corp. v. One Beacon Ins. Group, 8 N.Y.3d 708, 714, 840 N.Y.S.2d 302, 871 N.E.2d 1128 [2007] ).

In addition, we note that the court failed to reduce the disputed deductible by $ 25,000, as provided for in the Steadfast policy in the event of the resolution of a claim by mediation.