Trial court, First Department
Nov 27, 2023
2023 NY Slip Op 23362
An insured owed a defense may recover fees after defeating an insurer's action challenging only indemnification. The Supreme Court, New York County, dismissed the insurers' declaratory judgment action under CPLR 3211 (a) (2), denied partial summary judgment, and awarded the insured contractors reasonable defense fees. Coverage for curtain-wall repair depended on unresolved facts in the underlying construction action, making relief unripe under CPLR 3001. The court dismissed without prejudice rather than imposing an indefinite stay. Applying U.S. Underwriters Ins. Co. v City Club Hotel, LLC, it concluded that the conceded duty to defend extended to the indemnification-only action and declined contrary federal authority. It did not reach the limitations defense or the objection that issue had not been joined.
Trial court, Second Department
Nov 20, 2023
2023 NY Slip Op 51226(U)
Split result
The insurer's renewed summary judgment motion based on a declaratory judgment was denied as untimely without good cause. The Civil Court, Queens County, applied CPLR 3212 (a) and alternatively rejected res judicata and collateral estoppel because the default order's finality and application to these claims were unestablished, as was deliberate nonparticipation. The provider established mailing, receipt, and overdue payment under CPLR 3212 (g), but its cross motion for summary judgment was denied because factual issues remained concerning licensing eligibility under 11 NYCRR 65-3.16 (a) (12). That defense was not subject to preclusion for untimely denial. The provider's request to dismiss the affirmative defense under CPLR 3211 (b) was denied without prejudice, and the matter was set for trial.
