that summarized an updated present state of new york law on the right to recover settlement where the nature of the claims need only be shown to liability on the facts known to the insurer culminating in a settlement in an amount reasonable in view of the size of possible recovery and degree of probability of claimant success against the insured in response to that twenty eight day letter which emphasized that part of the caitlin case citing new york authority l m c lumbermen's responded in a way that ignores entirely as an inconvenient truth the seven hundred and fifty thousand dollars offer for settlement that was made by  because there was a right of action directly under the umbrella policy provisions against diamond and at the time of the suits filing lumbermen's was in a reorganization but that was not true at the time the policy was issued it was not true at the time that the evidence was provided to lead it to reconsider its fence or even at the time of the actual settlement so it's one of those rare instances given here from diamond up really a pure access policy there's a word in the policy it says umbrella slash excess turns out if you have a switch scenario where all the provisions of the policy are met coverage collectible valid as to sun ham visa v diamond but subsequently through no fault of sudden there may not be a pathway to the primary policy then that's when advertising injury is very much what the recent high point case from this court required that there was physical display activity which was brought to the attention of the insurer facts known to the insurer to clarify what the distribution which was diligent complaint declare what the advertising which is referenced in the prayer of this look to the content of a prayer here the prayer said hey you have to give up all your advertising materials of use of the siege guard in that category pursuant to our request that you are and joined from future distribution of these products action the advertising is a mechanism for bringing to the attention of the public these materials and we provided product catalogs that  were referring to the content and design that was allegedly part of the infringing activity that was made known to the insurers that was part of why reconsidered it's additional denial advertising materials in the exhibits four dollars and five dollars a one hundred and thirteen and then product catalogs part of that these additional materials have advanced the state of the law and showing coverage for infringement of advertising in the her decision the law had an advanced along those lines to clarify the importance of consideration of the extrinsic evidence known to the insurer but now in view of that movement i think it's clear that the facts settlement was reached it was for an amount less less than seven hundred and fifty thousand dollars so the carriers were already on notice that we had an offer of settlement wasn't accepted the case progressed to the point state of the underlying  action where we went to the slammer trial where the person who claimed to have originated the copyrights was present they were aware of that indeed lawrence paid the bill for richard hubbell the defense attorney to show up and participate at that settlement which lamb hubbell rather which is not attacked says that he had e mails and he had phone conversations advise him of of his attempt to show up and that you have the fact of the settlement amount how do you win previously other character that had that been accepted by the claimant it was within the scope of the legal obligation of the insurers to on the record and you  provision it's an exception that is within the scope of the obligation where they were already on the hook to pay anything that was seven hundred and fifty dollars or less because the offer of settlement made it high when both kerry said declined to defen and that's why the oxford case is very critical from the main supreme court as referenced in caitlin and so in that circumstance where the exit of the need to settle the case were evident became clear the voluntary payment provision is not a necessary bar because the philosophy behind it's in force ability was not implicated in a negative way consolidated edison called new york  insured that should be permitted to occur and so right here in this case it settled for seven hundred and fifty they were on the hook it didn't the point is we got a better deal because at the end we gave affirmative counterclaims with one hundred and fifty the prior notice but here the payment was not without prior notice because they were on notice the fact that seven hundred and fifty dollars or below was an amount that they were on the hook for because at the time the seven  was off for approved they had disclaimed coverage and everybody agrees if at hadn't occurred at that point in time they were on the hook and they never took the position and said well we let you know that we will never agree to payable because they had already been on the hook by settling we saved a lot of defense fees going forward we ended up giving affirmative really we did it for an amount that they were already on the hook for because of the  in the lawyer in the day and they received according to the declaration of of hubble which is not controverted by any evidence that they as submitted that he had communication with them about his it tend to appear at the the same context just to be clear diamond is an excess insurance company is issued in x s insurance policy to an entity called kim ing enterprises inc anything and everything about the policy applies to that entity kim as to the who's an insurer provision other entities may be incorporated if the underlying insurance covers and pays for them there's a specific provision under the diamond policy that says sun hand is an additional insurer only if the underlying insurance is valid and collectable and covers them for any claim special condition for sun am to be on the diamond policy v provision the us for your honor in terms of cooperating under the diamond policy has two important terms decided on page fifty and diamonds brief one is that no insure accept will accept that their own cause voluntarily make a payment assume any obligation or incur any expense without our consent the nd one just as important is knowing sure will insured will any way jeopardize our right after an occurrence or offense what was not known and the difference between lumbermen's and diamond is what was not known to diamond is that there had been all this deal wheeling and dealing between son hannan lumbermen when you hear council say they had been told about the coverage he's talking about lumbermen lumbermen and son m had dealt with each other had had a lawsuit between each other about the coverage apparently struck  deal was son him apparently compromised the position with respect to what lumbermen was going to do about defense and possibly about indemnity they were being notified in an attorney was involved that rights that otherwise would fall on a nexus insurer to be able to pursue rights in the position of the insured let's say if there were rights against another insurance company or anybody none of that was honored those provisions were in under on the diamond state policy but it goes back to the st thing i started with in order to be for sun hand under my particular policy diamond in order for them to have any coverages we don't even get to watch a lot as a tightening in your real what's covered under the diamond policy they have to be covered by the underlying policy they get a carve out for them they said we'll add sun hand as an insured under this policy that we issued to an entity called kim hang hang enterprises inc but you got to have underlying insurance that is valid in collectable and pays for use on him as then you claim clearly that's not the case here clearly well initially either way you look at it and they have satisfied the preserve vision under my policy if there is no underlying coverage with lumbermen lumbermen's the one they should be pursuing and collect from if they can't collect from lumbermen or if they're not covered on the lumbermen my provision says on page and j a nine hundred and thirty and nine you'll see in the policy why provision says only if you've got a valid and collectible underlying insurance on am are we going to tack you on to the kim healing policy either they can't satisfy their provision because there's no coverage or no collection from lumbermen or they can't satisfy that provision but the claim is within the lumberman policy so that you'll be able lumbermen either way there's no case against  fourteen days later a notice of cross appeal should have been filed by the rd party plaintiffs that wasn't done then and it wasn't done now nine years later so this court does not respect we have jurisdiction to hear any appeal against my client because  by diamond diamond never filed a notice of cross appeal the only notice of appeal was son hand against time and as a rd party defendant that procedural step has not been taken in nine years and very briefly on the covers this policy as your honor indicated covers eight grants coverage only for advertising liability it does not grant coverage for knock off of copyrighted material which judge keenan found in this case that's exactly what happened maybe there's a policy in the world found and i believe she was right on spot on with that finding in this case that this policy does not cover the pirating of knockoff products that are copyrighted by others that was the whole case that was the whole coverage dispute and judge code had decided that exact issue just go back to the standing issue yes or having trouble understanding your argument you are saying correct or incorrect that sun hand is down by the now it will be banned by the judgment to the extent that i moved for summary judgment against time down by the judge yes it was i want to it is down by the judgment why would it not then have standing to appeal that judgment  claim of relief against me and judge code grants that motion for summary judgment on the rd party action there was nothing in play and i guess i didn't mean to misstate it there was nothing in play between son him and my client the only course of action i guess i'm taken by your acknowledgement that sun hand notwithstanding the fact that it's between you and diamond is down by this judgment i don't know if i understand correctly so being down by it because the the it had no claim bad so i don't mean to confuse your honor i can only sit as what my understanding of war is is that that rd party action and may end that claim it may be in play between diamond and sun him that might be in fact was unusual let me ask you for your advice on this very simple what is the decree what's the remedy that you would wish us to apply here what do you want from us well judge it will be an affirmation judge postgrads a summary judgment period and at that point assuming for the are we that occurs the case is over as far as you're concerned that would be correct just trying to figure out what it is the judge code would be from lumberman's other then to point out that they have a policy that is at play is relevant to interpretation of my policy in that they were necessary party to the case but clearly the certain that there was no defense that was due and there was no occurrence that created liability and we contested that and that contest is why we're here and have a right against  one was the discussion of why we have standing to be before this court as against discussed at pages seventeen to eighteen with supporting authority in the reply brief and the other thing about copyright infringement is the mere display of a product is an act that creates infringing so well most people think a catalog is an advertisement most people know it's the physical the physical look and feel of the product as described in the catalog as displayed at a trade show it is part and parcel of the way the product is understood so there's a case that says a custom home is an advertisement for itself because that's the nature of that product as you look at it by going through and seeing it and since display itself creates liability thus display can have an advertising mode ality most of the product is not an advertisement for itself cases do not deal with copyright infringement claims w trade they had interesting labels the labels themselves had trade dress protection there physical display created liability in advertising because the fear of the physical presence of that particular tag had its own attractive feature that made it advertisement this notion that it has to be outside its is just adding words a limitation