This action concerns an insurance dispute between plaintiff, Gemini Insurance Company, and defendant, Certain Underwriters at Lloyd’s London (Underwriters), arising out of an underlying personal-injury claim brought in connection with a construction project at 214 West 72nd Street in Manhattan. Gemini insures general contractor CM and Associates Construction Management, LLC (CMA), and project owner Aventis — 72nd LLC. Underwriters insures subcontractor Source Construction Contracting Inc. A Source employee, Vicente Hernandez, sued CMA and Aventis in Supreme Court, Kings County, alleging that he was injured in May 2019 while working on the project. On September 20, 2019, Gemini sent a letter to Source in an attempt to tender the defense of CMA and Aventis in this underlying action to Underwriters pursuant to the Source policy, asserting that CMA and Aventis qualified as additional insureds on that policy.1 On October 2, 2019, Underwriters brought an action in this court to rescind the Source insurance policy. Underwriters’ rescission complaint alleged that Source had made material misrepresentations in applying for insurance policies from Underwriters. In May 2020, Underwriters disclaimed a duty to defend or indemnify CMA and Aventis in the underlying action, contending that they had not established that they were additional insureds on the Source policy, and noting that Underwriters had sued to rescind the Source policy altogether. In June 2020 Gemini brought this declaratory-judgment action against Underwriters. Gemini seeks a declaration that CMA and Aventis are additional insureds on the Source policy, declarations that Underwriters owes a duty to defend and indemnify CMA and Aventis in the underlying action pursuant to the Source policy, and an award of Gemini’s defense costs in the underlying action (plus attorney fees). Gemini now moves for partial summary judgment on its declaratory-judgment claims as to CMA and Aventis’s status as additional insureds and as to Underwriters’ duty to defend. The motion is denied. DISCUSSION A party bringing a motion for summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] [internal citations omitted].) If a movant does not “sufficiently demonstrate its right to summary judgment” the court must deny the motion “regardless of the sufficiency, or lack thereof, of the opposing papers.” (Cugini v. Sys. Lbr. Co., Inc., 111 AD2d 114, 115 [1st Dept 1985].) Once a prima-facie entitlement has been established the opposing party must, to defeat the motion, “assemble, lay bare, and reveal his proofs in order to show his defenses are real and capable of being established on trial…and it is insufficient to merely set forth averments of factual or legal conclusions.” (Genger v. Genger, 123 AD3d 445, 447 [1st Dept 2014].) Gemini seeks summary judgment on its declaratory-judgment claim that CMA and Aventis are additional insureds under the Source policy issued by Underwriters. Gemini is not, on the current record, entitled to summary judgment on this claim. The Source policy adds as additional insureds entities who “have agreed in writing in a contract or agreement” with Source that they must be “added as an additional insured on [Source's] policy. (NYSCEF No. 43 at 47.) Such a provision is binding under New York law if a direct written contract exists between the named insured and the additional insureds. (Linarello v. City Univ. of NY, 6 AD3d 192, 195 [1st Dep't 2004].) CMA and Aventis’s contracts with Source required it to procure commercial general liability insurance listing them as additional insureds (see NYSCEF No. 42 at 33-36), which satisfies the direct-written-contract requirement. (See Carlisle SoHo E. Trust v. Lexington Ins. Co., 49 AD3d 272, 272 [1st Dept 2008].) Crucially, however, the Source policy does not provide that entities meeting these requirements qualify as additional insureds in all circumstances. Rather, those entities are additional insureds “only with respect to liability for ‘bodily injury’…caused, in whole or in part by: 1. [Source's] acts or omissions, or 2. The acts or omissions of those acting on [Source's] behalf.” (NYSCEF No. 43 at 47.) And Gemini has not established, even prima facie, that this further condition has been satisfied here. Neither Hernandez’s complaint in the underlying action against CMA and Aventis nor CMA’s third-party complaint against Source in that action alleges that Hernandez’s injuries were caused in whole or in part by the acts or omissions of Source or its agents. Rather, the third-party complaint alleges only that CMA is entitled to contractual indemnification from Source, implicitly because Hernandez’s injuries arose out of or resulted from performance of Source’s work on the project. (See NYSCEF No. 40 at
