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CERTAIN UNDERWRITERS AT LLOYD'S v. BioENERGY DEV. GROUP LLC

10505. 655792/17.

178 A.D.3d 463 (2019)

115 N.Y.S.3d 240

2019 NY Slip Op 08779

Certain Underwriters at Lloyd's et al., Respondents, v. BioEnergy Development Group LLC et al., Appellants.

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

Decided December 5, 2019.

Attorney(s) appearing for the Case

Anderson Kill P.C., New York ( Robert M. Horkovich of counsel), for appellants.

Zelle LLP, New York ( Matthew L. Gonzalez of counsel), for respondents.

Concur—Richter, J.P., Gische, Webber, Gesmer, JJ.

The first counterclaim alleges breach of the insurance policies' escalation clauses and breach of the implied duty of good faith and fair dealing. Plaintiffs did not move to dismiss the breach of contract part of the counterclaim, and the motion court did not address that part of the counterclaim. Thus, the breach of contract part of the counterclaim should not be dismissed. Moreover, these are not duplicative claims, and we find...

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