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ZURICH AMERICAN INSURANCE COMPANY v. ACE AMERICAN INSURANCE COMPANY

7448. 651579/16.

165 A.D.3d 558 (2018)

86 N.Y.S.3d 468

2018 NY Slip Op 07074

Zurich American Insurance Company, Respondent, v. ACE American Insurance Company, Appellant, et al., Defendants.

Appellate Division of the Supreme Court of New York, First Department.

Decided October 23, 2018.

The duty to defend does not attach where, as a matter of law, there is no basis on which the insurer may be held liable for indemnification (see Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 N.Y.2d 875, 876 [1976]). The burden of establishing that a claim falls within a policy's exclusionary provisions rests with the insurer (see Neuwirth v Blue Cross & Blue Shield of Greater N.Y., Blue Cross Assn.,

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