Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The defendant Buckingham Badler Associates (hereinafter Buckingham) was a surplus lines wholesale insurance broker with whom the defendant Burlington Insurance Company (hereinafter Burlington) had contracted to act as a general managing agent. In or around November 2001, nonparty P&T Contracting Corp. (hereinafter P&T) retained the plaintiff, Bicounty Brokerage Corp. (hereinafter Bicounty), to procure commercial general liability insurance. To procure the requested coverage, Bicounty contacted Buckingham, dealing with Buckingham employee Frank Scotto. Bicounty submitted an application for insurance directly to Scotto, who issued what purported to be a document binding an insurance policy on behalf of Burlington providing coverage to P&T for the period of November 30, 2001, through November 2002 (hereinafter the alleged binder).
Subsequently, numerous personal injury actions (hereinafter collectively the underlying actions), were commenced against P&T for accidents that occurred in P&T's work area. Burlington denied coverage with respect to the underlying actions on the ground that it had never issued an insurance policy to P&T. Upon denial of coverage, Bicounty allegedly provided defense and indemnification in the underlying actions.
Burlington concedes that it waived the defense of lack of capacity to sue based on Bicounty's prior dissolution as a corporation by failing to raise that defense in its answer or in a motion to dismiss made prior to answering (see CPLR 3211 [a] [3]). We decline Burlington's request to grant it leave to amend its answer to include that affirmative defense at this stage, because Bicounty has shown that it would be prejudiced by such amendment at this time.
Nor is there merit to Burlington's contention that Bicounty lacks standing to bring this action, since Bicounty is not the party insured under the subject policy. Bicounty allegedly provided the intended insured, P&T, with a defense and indemnification in the underlying cases when Burlington refused to defend and indemnify P&T. As such, Bicounty has standing to bring this action (see Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 A.D.3d 792, 795 [2007]; Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 A.D.3d 1073, 1077 [2007]).
Moreover, the Supreme Court properly denied those branches of Burlington's motion which were, in effect, for summary judgment declaring that it was not obligated to defend and indemnify P&T in three of the underlying actions. Burlington failed to meet its initial burden of establishing, prima facie (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]), that Buckingham lacked actual authority to act on behalf of Burlington. There are triable issues of fact as to whether Scotto, as Buckingham's employee, had the actual authority to act on behalf of Burlington in giving a binding insurance policy to Bicounty.
Moreover, Burlington failed to establish its prima facie entitlement to judgment as a matter of law on its cross claim for indemnification against Buckingham. Burlington contends that it is entitled to indemnification from Buckingham because Buckingham breached agreements between Buckingham and Burlington. "[A] a principal that is vicariously cast in damages as the result of its agent's negligence may be entitled to full indemnification from the agent, who was the actual wrongdoer" (Neil Plumbing & Heating Constr. Corp. v Providence Washington Ins. Co., 125 A.D.2d 295, 297 [1986]). However, contrary to
Buckingham's remaining contention is not properly before this Court.