13190-13192. THE BURLINGTON INSURANCE COMPANY, plf-res, v. NYC TRANSIT AUTHORITY def-ap — Law Offices of Jeffrey S. Shein & Associates, P.C., Syosset (Charles R. Strugatz of counsel), for ap — Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York (Joseph D’Ambrosio of counsel), for res — Upon remittitur from the Court of Appeals (29 NY3d 313 [2017]), order and judgment (one paper), Supreme Court, New York County (Michael D. Stallman, J.), entered December 28, 2012 and January 9, 2013, which granted plaintiff summary judgment on its first cause of action declaring that plaintiff owes defendants New York City Transit Authority and Metropolitan Transit Authority (collectively, NYCTA) no coverage in the underlying personal injury action, granted plaintiff leave to amend its complaint to assert a second cause of action against NYCTA for contractual indemnification as equitable subrogee of the City of New York, and denied NYCTA’s cross motion for summary judgment on the first cause of action, and order, same court and Justice, entered December 19, 2013, which, to the extent appealed from, granted plaintiff’s motion for summary judgment for contractual indemnification against NYCTA and directed judgment in favor of plaintiff in the amount of $950,000, plus prejudgment interest, fees and costs, unanimously affirmed, with costs.
Contrary to NYCTA’s argument, the $950,000 payment made by plaintiff insurer, on behalf of the City, to settle an underlying personal injury action was not voluntary. Although the Court of Appeals, in the decision remitting this matter to us, has determined that the City, like NYCTA, was not an additional insured under the subject policy issued to plaintiff’s named insured, nonparty Breaking Solutions, the affidavit of plaintiff’s regional claims manager states that plaintiff withdrew its reservation of rights to the City based on NYCTA’s December 3, 2009 letter threatening to withhold payments under the contract with Breaking Solutions unless plaintiff defended and indemnified the City “without reservation.” Accordingly, the settlement payment cannot be said to have been voluntary, and an unjust windfall would result if NYCTA, having forced plaintiff to withdraw its reservation to coverage with respect to the City, NYCTA’s contractual indemnitee, were then permitted to refuse to honor its own contractual indemnification obligations to the City, to which plaintiff has become subrogated (see NYP Holdings, Inc. v. McClier Corp., 65 AD3d 186, 189, 190-91 [1st Dept 2009]).
