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Decided on November 8, 2004
Supreme Court, Kings County

7981/04
Mark Partnow, J.
plaintiff City of New York (the City) moves, pursuant to CPLR 3212, for an order granting it summary judgment on its claim that defendant Lumbermens Casualty Co. (Lumbermens) is required to defend the City in the actions entitled Colosi, et al. v Lelia , et al., Index No. 5982/00, Supreme Court, Queens County (the Colosi action) and Seargent, et al. v City of New York, et al., Index No. 49684/02, Supreme Court, Bronx County (the Seargent action). Lumbermens opposes the instant motion on the ground that the City failed to provide a timely notice of claim in regard to both the Colosi and Seargent actions and, in any event, Lumbermens is not obligated to provide a defense for the City in said actions because the claims asserted therein did not "arise out of the operations" of the primary insured, Amboy Bus Co., Inc. (Amboy).
Pursuant to contracts between Amboy and the City's Board of Education, Amboy provided [*2]transportation services for students to and from the City's public schools. The contracts required Amboy to obtain, inter alia, comprehensive general liability insurance. As a result, Amboy purchased from Lumbermens a general liability policy (policy number 5AA 045 303-00) with maximum coverage of $2 million per occurrence for a period of twelve months with an effective date of December 31, 1998 (the Policy). Under the Additional Insured Endorsement of the Policy, an insured includes "any person or organization as required by written contract." In regard to the insurance coverage provided to any person or organization listed as an additional insured under the Policy, such additional insured is considered as "an insured but only with respect to liability arising out of your [the primary insured's] operations or premises owned by or rented to you." The City and the City's Board of Education are identified as additional insureds under the Policy.
On or about May 14, 1999, Sabrina Colosi (Colosi) was allegedly injured when the Amboy school bus in which she was a passenger collided with an automobile. On or about March 29, 2000, the City was served with a summons and complaint in the Colosi action. The complaint alleges that Colosi suffered a "serious injury" as a result of defendant Amboy's negligent operation of a motor vehicle. The complaint further alleges liability on the part of the City and the Board of Education due to the alleged failure of a teacher at Colosi's school to obtain proper medical care for her subsequent to the accident. By letter dated June 13, 2000, the New York City Law Department notified Kemper Insurance Company, the parent company of Lumbermens, of the City's receipt of the Colosi complaint. By letter dated August 29, 2002, Kemper, on behalf of Lumbermens, disclaimed coverage for the Colosi action under the Policy. The disclaimer letter stated that in regard to the negligence claims brought against the City in the Colosi action:
These are allegations of negligence which do not arise out of [Amboy's] use and operations of an auto. Any liability arising out of these allegations would be the result of the City of New York, New York City Board of Education's sole negligence. As such it would not trigger coverage under [the Policy].
On or about December 22, 1999, Andrew Seargent (Seargent) was allegedly struck and injured by another student while they were both passengers on an Amboy school bus. On or about December 12, 2002, the City and the Board of Education were served with a summons and complaint in the Seargent action. The complaint alleges, in relevant part, that Seargent was a passenger on an Amboy bus when he was injured; that Amboy was in the business of transporting school children; that Amboy had contracted with the City to provide such transportation for the City's Board of Education; that Seargent was injured by another student on the school bus and that defendants were "negligent, wanton, reckless and careless, in, among other things, . . . allowing, causing and/or permitting dangerous, hazardous, unsecure and/or unsafe conditions to exist on the . . . bus motor vehicle."
On or about February 25, 2003, the Law Department of the City of New York forwarded the summons and complaint in the Seargent action to Lumbermens. To date Lumbermens apparently has not disclaimed coverage, or conversely, acknowledged any duty to defend the City in the Seargent action.
It is well settled that "an insurer's duty to defend its insured arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy" (Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 65 [1991] ). "If the allegations [*3]of the complaint are even potentially within the language of the insurance policy, there is a duty to defend" (Town of Massena v Healthcare Underwriters Mutl. Ins. Co., 98 NY2d 435, 443 [2002]). Moreover, "[i]f any of the claims against [an] insured arguably arise from covered events, the insurer is required to defend the entire action" (Frontier Insulation Contrs., Inc v Merchants Mutl. Ins. Co., 91 NY2d 169, 175 [1997]). Although "[t]he duty to defend is measured against the allegations of pleadings" (Servidone Const. Corp. v Security Ins. Co. of Hartford, 64 NY2d 419, 424 [1985]), the "characterization of the causes of action alleged in a complaint are not controlling [rather] we . . . determine the nature of the claims based upon the facts alleged and not the conclusions which the pleader draws therefrom" (Curtis v Nutmeg Ins. Co., 204 AD2d 833, 834 [1994], lv dismissed, 84 NY2d 1027 [1995] [internal quotation marks and citations omitted]). Given the "exceedingly broad nature of the duty to defend"(Syvertsen v Great American Ins. Co., 267 AD2d 854, 856 [1999]), however, "an insurer can be relieved of its duty to defend [only] if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify the insured under any policy provision" (Allstate Ins. Co. v Zuk, 78 NY2d 41, 45 [1991]).
In the event that an insurer elects to disclaim coverage, it is well settled that "where the insurance policy in question would otherwise cover the particular occurrence, but for an exclusion in the policy, Insurance Law

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