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K2 INV. LLC v. AMERICAN GUAR.

No. 6

22 N.Y.3d 578 (2014)

6 N.E.3d 1117

983 N.Y.S.2d 761

2014 NY Slip Op 1102(U)

K2 INVESTMENT GROUP, LLC, et al., Respondents-Appellants, v. AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY, Appellant-Respondent.

Court of Appeals of New York.

Decided February 18, 2014.

Attorney(s) appearing for the Case

Coughlin Duffy, LLP, New York City ( Kevin T Coughlin , Robert J. Kelly and Michael S. Chuven of counsel), and Steinberg & Cavaliere, LLP, White Plains , for appellant-respondent.

Law Offices of Michael A. Haskel, Mineola ( Michael A. Haskel of counsel), for respondents-appellants.

Chamberland D'Amanda Oppenheimer & Greenfield LLP, Rochester ( K. Wade Eaton of counsel), and Wiley Rein LLP, Washington, D.C. ( Laura A. Foggan and Jennifer A. Williams of counsel), for Complex Insurance Claims Litigation Association and another, amici curiae.

Anderson Kill, PC., New York City ( William G. Passannante and Allen R. Wolff of counsel) and Amy Bach , San Francisco, California, for United Policyholders, amicus curiae.

Hurwitz & Fine, PC., Buffalo ( Dan D. Kohane , Elizabeth A. Fitzpatrick , Steven E. Peiper and Diane F. Bosse of counsel), for New York Insurance Association, Inc. and others, amici curiae.

Covington & Burling LLP, Washington, D.C. ( Elliott Schulder , William F. Greaney and Matthew Kudzin of counsel), and Covington & Burling LLP, New York City ( P Benjamin Duke of counsel), for Coltec Industries Inc. and another, amici curiae.

Chief Judge LIPPMAN and Judges READ and RIVERA concur with Judge SMITH; Judge GRAFFEO dissents and votes to affirm the order appealed from in an opinion in which Judge PIGOTT concurs; Judge ABDUS-SALAAM taking no part.

OPINION OF THE COURT

SMITH, J.

American Guarantee & Liability Insurance Company contends, on reargument, that our prior decision in this case, K2 Inv. Group, LLC v American Guar. & Liab. Ins. Co. (21 N.Y.3d 384 [2013]) (K2-I), erred by failing to take account of a controlling precedent, Servidone Constr. Corp. v Security Ins. Co. of Hartford

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