could have prevailed on her failure to accommodate claims without ever proving any intentional discrimination and we believe that's enough to bring this within the policies coverage now but clearly the complaint does also include allegations of intentional discrimination but we believe that's not the relevant factor the factor is whether there is any claim allegation supporting any claim in the complaint that are within the policies coverage and we believe that there are right well so the complaint pleads failure to accommodate theory now there are also allegations of intentional discrimination in it's to be borne is not the most artfully pleaded complaint we think that  the plaintiff under this complaint probably could have proceeded on under both the disparate treatment theory and if in your to accommodate theory but there are very clear very clearly does plead failure to accommodate and mix your argument is that  should be covered because part of it would be arguable accidental yes we think it's just a black letter new york insurance law if there is any covered claim then it is covered under the policy as for purposes of insurance  defense if there's a single covered claim then the duty to defend attaches and or we don't look at that is it by some certain acts were arguably not intentional and some were or is it by the claims it would be covered by the the policy so in this complaint there are various allegations basically that the plaintiff was denied certain accommodations and as a result of the denial of those accommodations was unable to access the services and that states a claim for failure to failure to accommodate which which we believe will be covered under the policy and that's enough regardless of whether there are also allegations that would be more sound disparate treatment which would not be covered by the policy perplexed by some of the new york e as to whether we are to look to the cause of action or to the factual allegations to figure  out because the factual allegations here don't seem to be ones that are directly charge it's not just a throwaway line that there was deliberate discrimination against the handicapped there recitation that seem to support that rather than some claim that the accommodation just didn't happen for some reason right and and i think i think what's important is that there are also allegations and part of the issue here is that the plaintiff was clearly proceeding on a failure to accommodate claim and the judges recognized that this was a fairly common claim however the cause of action th counts lead out in the complaint didn't distinguish between the particular legal theories it was all kind of lumped together in a single legal theory and i think actual recitation is pretty much i called up and the st thing they said was don't expect any allegations and it was in the county specifically lays out theory to accommodate that demonstrates an intent also to have a failure to accommodate claim you know to litigate that as well and one thing i would add i would ask is if someone has a if someone intends to rely solely on intentional discrimination then what purpose does it serve to include a failure to accommodate claim in their complaint otherwise if they have the disparate treatment allegations in the end they intend to rely on those intentional actions to prove their case than a failure to calmly claim adds nothing to the case just more elements to prove a no benefit for them but by including a failure common a claim the purpose of that is to allow them to prevail even if they can't prove intent even without any as a matter of public policy or as a matter of policy coverage for occurrences it's it's not just the mere fact that there were intentional actions because that's true in a wide range of coverage cases including many types of negligence actions where there are intentional actions that result in some harm or at least that's not you're not deliberately intending to cause any harm and you're negligent in the right exactly and that's it here is where we have we have made the analogy with disparate impact cases where it's good i think is clear under case law and under new york is public insurance policy that disparate impact claims as opposed to disparate treatment claims disparate impact claims are covered claims and because the the adoption of a facially neutral policy which leader results in a does a discriminatory impact that even though it's an intentional doctrine of the policy it didn't the the result into discrimination was not necessarily intended to come any claims fall somewhere philadelphia one need only look at paragraph thirty of the complaint of the golden component which is in the joint appendix page one on one and on reads defendant intentionally discriminated against plaintiff and acted w deliberate indifference to communication needs causing her to endure humiliation fear anxiety and emotional distress and that paragraph is incorporated into each and every cause of action that follows it doesn't matter whether this and this goes both your question iran and as well as to judge march it does it doesn't matter whether you call this a disparate treatment case a disparate impact after act after act of intentional conduct as no allegation of unexpected unintended injury this is a claim surely and solely of intentional conduct and those are the facts alleged how do you account for the survey don construction case in the new york court of appeals which says an insurer may refuse to defend and now i'm quoting only if it could only if it could be concluded as a matter of law that there is no possible factual allegations you asked the question of my my colleague which is more important if you will the factual allegations or the allegations of theory and new york courts have said time and time again that shotgun allegations of theory do not take away from the factual allegation and in fact this court most of those cases are ones that go against the insurance company there are ones that say you don't lose your coverage because you threw in an allegation of willfully an ode to the contrary your hon most of those cases are go the other way that they are cases where for example someone says he beat me over the head with a baseball bat time and time again but it wasn't it was it was negligent or gavroche which is a well same situation the court said well there are allegations in the complaint the school argued that if proven could result in insurers liability for damages and the court said for intentional conduct proving unintentional injury in this court said we can see no reason why the courts have imagined what is not in the complaint in order to find liability which was not intended here without questioning every single allen factual allegation alleges intentional conduct the or is not a single allegation to the contrary so do you certify this case your honor you asked the question i don't think it's necessary because this case fall through the net body of that solid body of new york case law that says we don't look at the allegations in the complaint to create coverage the only time we look outside the complaint the finished fitzgibbons case talked about that is if if you know of facts if you know of true facts that would take the of the classic disparate treatment case the intent that's required is an intent to discriminate you have to be saying in effect we don't want your kind around here and in the classic accommodation we for whatever reason don't think it's necessary or appropriate or affordable to give you an accommodation right and so those are quite different things and while i understand that the complaint here like many complaints is loading up on these are bad guys the actual factual allegations certainly give rise to a potential inference that if all those facts are true in the conversation went exactly that way the jury could reasonably find intentional discrimination but it's not clear to me that a jury would have to find that and if the jury found something short of that and just said well but she was asking for something reasonable and you made a mistake in not providing it wouldn't they wouldn't the public accommodation provider doing something intentionally designed to discriminate there is no maybe if you had a different lawyer and had a different complaint and it be a different theory would be in a different place but we can't change the complaint this is the complaint we have these are the allegations we have this is the allegation paragraph rd as if this was intentional this thing an accident we're not kidding around this is what was done on purpose what if the combination requested and the line case was obviously unreasonable and in that case the insurer and is you know there's an allegation of intentional failure to accommodate but is it acting moment in the law  of accommodation i'm sorry your honor i don't understand the question you're asking in a situation where in the underlying complaint the allegation is that there's intentional discrimination intentional failure to nominate but the combination saw it is obviously unreasonable no coverage because under your view because the intentionality of that's right and may not be any liability either at the end of the day and in this case as you know they found no liability on the part of the the psychiatric center so there are some that happened sometimes you have an allegation in a complaint that's outside of coverage is declined the insured and then proceeds to try the case and there's a verdict in the defense's favor because it wasn't discrimination and everybody goes home that that's that's not unusual sherman bat and a carrier declines coverage and there's a verdict for the defense that doesn't give them defense c lose my understanding and i wasn't involved in the case at that point but my understanding is that the key issue actually a trial was separate from all of this it was actually an issue of causation where there was a question of whether the theor the denial of certain services was due to the failure the lack of accommodations or rather two independent factors that the center could not provide the services that were being requested or did not have asked me to provide those for reasons completely apart from any disability this moment but they were kind of crafted around this causation issue which was the key issue in dispute so that the these issues were not kind of central to and that the jury instructions don't really clearly my reading clearly addressed that one way or another i would say though however that the concern that we've been raising is not theoretical throughout the litigation of that case the goldman case in through through motions for summary judgment and all the pretrial and up to trial the issue of liability ue said that there's not a single allegation that is an intentional i would refer you to our reply brief appeasers three dollars to five dollars where we've laid out what we think are the allegations in the complaint that they are more than sufficient to state a cause of action for discrimination by failure to accommodate without any any need for any discriminatory intent and so we think that's enough to show that and the final issue was the question was raised about what if a jury had decided to find on this complaint that there was maybe there was liability just on the basis of insufficient accommodations and i would go one step further i think that the plaintiff on the basis of this this complaint could have chosen to go to trial and rely entirely on the lack of accommodations on this very complaint without ever bringing even trying to prove the intent if this plaintiff i decided that my best bet for