The court found Equitable Life Assur. Soc'y of the U.S. v. Werner, 286 AD2d 632, 730 N.Y.S.2d 329 (1st Dept 2001) determinative on the issue of whether a claim for indemnification lies against defendants. The First Department concluded in Equitable that indemnification rests on a duty owed by the indemnitor to the indemnitee, and that the broker in that case, as the insurer's agent, owed the latter a duty to be truthful on the insurance application. Id. The Equitable court referred to the broker defendant as the agent of the plaintiff insurer, but it did not refer to the existence of an agency contract or base the decision on it. Defendants have submitted, in support of their motion to renew, the complaint that was filed in the Equitable case, which explicitly alleges a contractual agency relationship between the parties. Even though defendants did not bring this fact to the court's attention in its original papers and does not now provide reasonable justification for that failure, the court exercises its discretion and accepts the "new" information so as not to "defeat substantive fairness." Garner v. Latimer, 306 AD2d 209, 210, 761 N.Y.S.2d 657 (1st Dept 2003), quoting Metcalfe v. City of New York, 223 AD2d 410, 411, 636 N.Y.S.2d 60 (1st Dept 1996) (renewal properly granted). The complaint in Equitable sheds light on the basis for the First Department's decision. In fact, the existence of a contractual relationship between the broker and the insurer in Equitable, concretely establishing an agency relationship, could explain why that case has not been the subject of much discussion in its aftermath. However, this narrower view of Equitable, although important in general, does not end the inquiry. Even though there was an agency contract in Equitable, the decision in that case was premised on the fact of an agency relationship that gave rise to a separate duty, not that the agency relationship was established by contract.