At all times mentioned herein, upon information and belief, defendant, HARBEN STUDIOS, LLC, its agents, servants, representatives, employees, contractors and/or subcontractors operated Apartment 1 with all its appurtenances, at the premises known as and located at 160 W. 84th Street, New York, NY.

At all times mentioned herein, upon information and belief, defendant, HARBEN STUDIOS, LLC, its agents, servants, representatives, employees, contractors and/or subcontractors managed Apartment 1 with all its appurtenances, at the premises known as and located at 160 W. 84th Street, Apt 1, New York, NY.

At all times mentioned herein, upon information and belief, defendant, HARBEN STUDIOS, LLC, its agents, servants, representatives, employees, contractors and/or subcontractors maintained Apartment 1 with all its appurtenances, at the premises known as and located at 160 W. 84th Street, New York, NY.

At all times mentioned herein, upon information and belief, defendant, HARBEN STUDIOS, LLC, its agents, servants, representatives, employees, contractors and/or subcontractors controlled Apartment 1 with all its appurtenances, at the premises known as and located at 160 W. 84th Street, Apt 1, New York, NY.

On August 28, 2020, and for an unreasonably long period of time prior thereto, the bathroom ceiling and its appurtenances in Apartment 1, at the premises known as and located at 160 W. 84th Street, New York, NY, was and had been in a weakened, broken, loose, cracked, deteriorating, dilapidated, unsafe, dangerous, hazardous and defective condition.

PLEASE TAKE NOTICE that, in the above-entitled action, the third-party plaintiff has impleaded the above named third-party defendant, that the caption is now set forth as above, and that a copy of this statement has been served upon all attorneys who have appeared herein.

That at all times hereinafter mentioned, the third-party defendant, JTJ, is and was a foreign corporation licensed and duly authorized to do business in the State of New York.

With respect to each Job, Contractor agrees and will cause its Subcontractors, to the fullest extent permitted by applicable law, to indemnify, protect, defend and hold harmless the Owner for whom such Job is being performed, Property Manager and each of their respective members, managers, shareholders, officers, directors, partners, trustees, employees, agents, successors and assignees (collectively, the “Indemnitees”) for, from and against all liabilities, claims, damages, losses, liens, costs, fines, penalties, causes of action, suits, judgments, disbursements and expenses (including court costs, expenses and attorneys’ fees) of any nature, kind or description of any person or entity related to:

the negligent performance of Contractor’s work and those of its Subcontractors under the terms of or related to this Agreement; Contractor’s breach of the Agreement, whether or not same is caused by the error or negligent act or omission of Contractor or any of its agents, employees, or Subcontractors; and death, disease, sickness, personal injury or property damage or destruction… directly or indirectly arising out of, caused by, or resulting from, in whole or in part, the work performed by Contractor, any Subcontractor, anyone directly or indirectly employed by them or anyone that they control or exercise control over (each a “Contractor Party”) in connection with such Job, the applicable Job Contract or any act or omission of any Contractor Party arising from, relating to or in connection with such Job (collectively, “Liabilities”) to the extent such Liabilities are not attributable to the negligence or willful misconduct of the applicable indemnitee.

SIXTEENTH: At all relevant times hereinafter mentioned the third-party defendant performed work pursuant to the aforementioned Contract and “Insurance and Indemnity Agreement,” including demolition, renovation, construction, and repairs at the subject premises.

Argonaut is defending Harben in the Underlying Action, brought by a tenant, Jacqueline Quilez, who alleges that on August 28, 2020, her bathroom ceiling fell, injuring her.

Although the Amended Complaint in the Underling Action specifically alleges that JTJ’s acts or omissions caused plaintiff’s bodily injury in the performance of JTJ’s operations, on July 15, 2022 James River denied that it owes a duty to defend Harben, contending that it has “no information ... to confirm the allegations were caused by JTJ’s acts or omissions, therefore it does not raise the potential for coverage under the James River Policy.” (Affidavit of Diedre LaPlant (“LaPlant Aff.”), annexed as Exh. C, and Exhibit 4 thereto).

Fitzpatrick, 78 N.Y.2d at 65-66 (quotations and citation omitted) (finding duty to defend even “where there exist extrinsic facts suggesting that the claim may ultimately prove meritless or outside the policy’s coverage” and explaining that “the courts of this State have refused to permit insurers to look beyond the complaint’s allegations to avoid their obligation to defend”); Ohio Cas.

3d 317, 326 (S.D.N.Y. 2020) (finding duty to defend under similar endorsement where “it is reasonably possible that [the named insured’s conduct] was negligent and gave rise to the claim against [the additional insured]”).

Jan. 4, 2024) (“As Navigators’ duty to defend on a primary basis has been triggered, plaintiffs are also entitled to reimbursement of defense costs incurred from the date on which Navigators received the tender”); Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Greenwich Ins. Co., 103 A.D.3d 473, 474 (1st Dept.

On August28,202Q Jacqueline Quilez, who at relevant times resided in an apartment at the Premises, was allegedly injured when a section of the ceiling of her bathroom collapsed and struck her.,

JRIC's response to Ms. Peltz' request for reconsideration, by email of December 15,2022 from Thomas Farrell, stated: "At this time we continue to stand by our letter of July 15,2022.lt has not been established that the ceiling collapse was caused by my insured's acts or omissions."

Jonathan Glasser of Lester Schwab Katz & Dwyer LLP, coverage counsel for ARGONAUT, wrote to Mr. Farrell on March 28,2023 seeking further reconsideration 29.

To date, ARGONAUT has paid all of the attorneys' fees, costs, disbursements and other expenses incurred in its defense of HARBEN in the Quilez Action

All defense costs paid by ARGONAUT have been expended in good faith, in the absence of compliance by JRIC to fulfill its obligation to defend HARBEN in the Quilez Action.