NEW YORK STATE THRUWAY AUTHORITY, plf, v. KETCO, INC., DEFENDANT THIRD-PARTY PLAINTIFF- res-ap, ST. PAUL TRAVELERS, DEFENDANT THIRD-PARTY DEFENDANT-APPELLANT-res; CONRAD GEOSCIENCE CORP. THIRD-PARTY DEFENDANTS-RESPONDENTS; TRAVELERS PROPERTY & CASUALTY CO., FORMERLY KNOWN AS TRAVELERS INDEMNITY COMPANY OF ILLINOIS, THIRD-PARTY DEFENDANT-APPELLANT- res — (INDEX NO. 8476/06)In an action, inter alia, for a judgment declaring that the defendant thirdparty plaintiff, Ketco, Inc., is obligated to defend and indemnify the plaintiff in four underlying actions pending in the Court of Claims, the defendant third-party defendant, St. Paul Travelers, and the third-party defendant, Travelers Property & Casualty Co., formerly known as Travelers Indemnity Company of Illinois, appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Ecker, J.), dated May 25, 2011, as denied their motion pursuant to CPLR 3211(a)(7) to dismiss the amended third-party complaint insofar as asserted against them and granted that branch of the cross motion of the defendant third-party plaintiff, Ketco, Inc., which was for summary judgment declaring that they were obligated to defend and indemnify it in this action pursuant to certain insurance policies issued by them to the plaintiff and to Ketco, Inc., and pursuant to the commercial general liability policy which they issued to the third-party defendant Conrad Geoscience Corp., and the defendant third-party plaintiff, Ketco, Inc., crossappeals, as limited by its brief, from stated portions of the same order which, inter alia, determined that the timeliness of the disclaimer by the defendant third-party defendant St. Paul Travelers and the third-party defendant Travelers Property & Casualty Co., formerly known as Travelers Indemnity Company of Illinois, under certain commercial general liability and umbrella policies must be measured from October 5, 2004, rather than from August 2, 2004.
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendant third-party defendant, St. Paul Travelers, and the third-party defendant, Travelers Property & Casualty Co., formerly known as Travelers Indemnity Company of Illinois, which was pursuant to CPLR 3211(a)(7) to dismiss so much of the amended third-party complaint as sought a judgment declaring that they are obligated to defend and indemnify the defendant third-party plaintiff, Ketco, Inc., in this action pursuant to the insurance policy they issued to the plaintiff, which bears the policy number DT-PRH-5053A075-TIL-03, and substituting therefor a provision granting that branch of the motion, and 2) by deleting the provision thereof granting those branches of the cross motion of the defendant third-party plaintiff, Ketco, Inc., which were for summary judgment declaring that the defendant third-party defendant, St. Paul Travelers, and the third-party defendant, Travelers Property & Casualty Co., formerly known as Travelers Indemnity Company of Illinois, are obligated to defend and indemnify Ketco, Inc., in this action pursuant to an insurance policy which they issued to the plaintiff, which bears the policy number DT-PRH-5053A075-TIL-03, and an insurance policy they issued to the third-party defendant Conrad Geoscience Corp., which bears the policy number GS 7120348, and substituting therefor a provision denying those branches of the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for the entry of judgment declaring that the defendant third-party defendant, St. Paul Travelers, and the third-party defendant Travelers Property & Casualty Co., formerly known as Travelers Indemnity Company of Illinois, are not obligated to defend or indemnify the defendant third-party plaintiff, Ketco, Inc., in this action pursuant to the insurance policy they issued to the plaintiff, which bears the policy number DT-PRH-5053A075-TIL-03, and are obligated to defend and indemnify the defendant third-party plaintiff, Ketco, Inc., in this action, pursuant to the insurance policies they issued to Ketco, Inc., which bear the policy numbers CUP-924K615-A and CO 924K6112.
