The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 20, 27, 28, 29, 30, 31, 32, 33, 34, 35, 39, 40, 41, 42, 43, 44, 45, 54, 55, 56, 57, 58 were read on this motion to DISMISS. DECISION + ORDER ON MOTION This declaratory-judgment action arises from a construction-related property damage action pending in this court. (See Board of Managers of the A Building Condominium v. 13th & 14th St. Realty, LLC, Index No. 100061/2011 [Sup Ct, NY County] [Leslie Stroth, J.].) Plaintiffs, Utica Mutual Insurance Company and Utica National Assurance Company (collectively, Utica), issued insurance policies to defendants Crystal Curtain Wall System Corp. and Crystal Window and Door Systems, Ltd. (collectively, the Crystal Entities). Utica does not dispute that it has a duty to defend the Crystal Entities in the underlying action. But it seeks a declaration that it has no duty to indemnify the Crystal Entities for any judgment or settlement reached in that action.1 The Crystal Entities move to dismiss under CPLR 3211 (a) (2) and (a) (7) or, alternatively, move under CPLR 2201 to stay this action pending the outcome of the underlying action. The Crystal Entities also seek their attorney fees incurred in defending this action. Utica cross-moves under CPLR 3212 for partial summary judgment. The Crystal Entities’ motion to dismiss is granted. Utica’s cross-motion for summary judgment is denied. The Crystal Entities fee request — which implicates an issue of law on which there is little New York appellate precedent — is granted. BACKGROUND A. The Underlying Action The underlying action concerns the construction of two mixed use residential and commercial buildings, one of which, “Building A,” was located at 425 East 13th Street, New York, New York. (NYSCEF Doc No. 1 83.) Crystal Window entered into a subcontract with the project’s general contractor (Hudson Meridian Construction Group, LLC) to design and install window and curtain systems as well as various other items, such as terrace doors and a glass parapet for Building A.2 (Id. 85.) On March 22, 2007, Crystal Window assigned to Crystal Curtain some or all of its rights and obligations under the subcontract. (Id. 90.) In connection with this project, Utica issued various insurance policies to the Crystal Entities for the period from February 28, 2008, through February 28, 2012. (Id. at 13-15.) Gordon H. Smith Corp (GHSC) was retained by 13th & 14th Street Realty LLC (13th & 14th), the owner of Building A, as a consultant in connection with the construction of Building A. (Id. 93.) Allegedly on August 29, 2006, GHSC wrote that it had serious concerns with the curtain wall system’s performance, and in 2007, GHSC reported leaking conditions. (Id.
