MEMORANDUM DECISION AND ORDER Plaintiff LM Insurance Corporation brings this action seeking a declaration that Defendants Federal Insurance Company (“Federal”) and New York Marine and General Insurance Company (“NYMAGIC”) have a primary duty to defend and indemnify LM Insurance’s named insured in the underlying state action, Mary Guzman v. Old Slip Property LLC and Beacon Capital Partners, LLC, Index No. 7292/2016. (Complaint, ECF No. 1.) NYMAGIC and Federal filed counterclaims against LM Insurance and crossclaims against one another. (NYMAGIC’s Answer to Compl. (“NYMAGIC’s Answer), ECF No. 12, at 78; Federal’s Answer to Compl. (“Federal’s Answer”), ECF No. 25, at 11-13.) Before the Court are LM Insurance’s and NYMAGIC’s cross motions for summary judgment. (LM Insurance Mot. for Summary Judgment, ECF No. 55; NYMAGIC Mot. for Summary Judgment, ECF No. 61.) LM Insurance’s motion is GRANTED to the extent that Federal has a duty to defend Old Slip in the underlying action, but DENIED as to NYMAGIC’s duty to defend Old Slip, and DENIED without prejudice as to declaring whether Federal has a duty to indemnify LM Insurance. NYMAGIC’s motion declaring that it has no duty to defend or indemnify LM Insurance or Federal is GRANTED. I. FACTUAL BACKGROUND The Court has drawn the following facts from the parties’ Local Rule 56.1 statements and summary judgment briefings. The facts are undisputed unless otherwise noted. A. The Underlying Action On June 20, 2016, Mary Guzman brought an action against Old Slip Property, LLC and Beacon Capitol Partners (collectively “Old Slip”) in state court for injuries she suffered when a glass panel detached and fell on her while she was cleaning a revolving glass door on the fifteenth floor of Old Slip’s building. (Complaint at 3.) Old Slip was the owner and landlord of the building where the incident occurred. (Statement of Undisputed Facts, ECF No. 57, at 7.) BNY1 leased the fifteenth floor where the revolving door was located. (Federal Counterstatement to Undisputed Facts, ECF No. 81, at 8.) Guzman was an employee of PBM — a cleaning services company that had separate service contracts with both Old Slip and BNY. (NYMAGIC Counterstatement to Undisputed Facts, ECF No. 71, at
16, 25; ECF No. 81 at 81.) The parties dispute whether Guzman was performing services for Old Slip or BNY when the accident occurred.2 On November 7, 2017, Old Slip impleaded PBM (the “Third Party Complaint”) alleging that PBM caused Guzman’s accident because of PBM’s “affirmative, active and sole negligence.” (ECF No. 57 at
