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Given the breadth of the duty to defend, liability insurers often must defend insureds against claims that do not ultimately trigger the duty to indemnify. In some states, an insurer can offer a defense under a reservation of rights, to later withdraw and recover its defense costs once it is determined that there is no coverage for the claim.
New York may not permit this type of recovery. According to a recent New York appellate court decision of first impression, an insurer may not recover defense costs in the event that there are no covered claims, even if it has reserved the right to do so, unless the policy explicitly provides for such recovery. S