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BERKSHIRE HATHAWAY SPECIALTY INS. CO. v. H.I.G. CAPITAL, LLC

Index No. 652750/17. Appeal No. 13644N. Case No. 2020-02854.

193 A.D.3d 605 (2021)

142 N.Y.S.3d 806

2021 NY Slip Op 02479

Berkshire Hathaway Specialty Insurance Company et al., Plaintiffs, and Starr Indemnity & Liability Company, Respondent, v. H.I.G. Capital, LLC, Appellant.

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

Decided April 22, 2021.

Attorney(s) appearing for the Case

Hunton Andrews Kurth LLP, New York ( Michael S. Levine of counsel), for appellant.

Stroock & Stroock & Lavan LLP, New York ( Michele L. Jacobson and Laura Besvinick of the bar of the State of Florida, admitted pro hac vice, of counsel), for respondent.

Concur—Manzanet-Daniels, J.P., Mazzarelli, Mendez, Shulman, JJ.

Defendant's proposed new fifteenth affirmative defense fails to state a cause of action and is therefore insufficient as a matter of law (see McGhee v Odell, 96 A.D.3d 449 [1st Dept 2012]). In connection with its application for insurance from Starr, defendant executed a "Warranty and Representation Letter" in which it represented that there were then no pending claims, suits, actions...

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