the instant declaratory judgment action. Plaintiffs complaint argues that Michael Cassella's failure to expressly list Thomas Cassella amounted to a material breach of the insurance policy and that the Endorsemert expressly excluded coverage when anyone other than the named insured operated the Boat. Based upon those two arguments, Plaintiff seeks declaratory judgment with regard to the coverage of the Policy. See 28 U.S.C. § 2201. Michael Cassella, while answering the complaint, filed four counterclaims. These counterclaims assert that Plaintiff has refused to perform its obligations under the Policy and seeks declaratory judgment in favor of Michael Cassella. The counterclaims further seek "attorneys fees, costs and disbursements incurred in connection with the defense of the within action and/or institution of counter-claims."
On September 30, 2002, the parties filed cross-motions for summary judgment.
A. Cross-Motions for Summary Judgment.
It is axiomatic that summary judgment may not be granted unless "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden to show that no genuine issue of material fact exists lies with the moving party. Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994). An issue of material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When considering cross-motions for summary judgment in which both parties assert an absence of a genuine issue of material fact, a court need not enter a judgment for either party, but must examine each motion separately and, in each case, draw all reasonable inferences against the moving party. Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001).
However, genuine issues of fact are not created by conclusory allegations. Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993). Rather, summary judgment is proper when, after drawing all reasonable inferences in favor of a nonmovant, no reasonable trier of fact could find in favor of that party. See Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
B. New York Insurance Law § 3420(e).
"Absent a specific federal rule, federal courts look to state law for principles governing maritime insurance policies . . . and apply federal maritime choice of law rules to determine which state's law to apply." Commercial Union Ins. Co. v. Flagship Marine Servs., Inc., 190 F.3d 26, 30 (2d Cir. 1999). Applying these principles to the instant contract, and based upon the representations of the parties, the Court concludes that New York law controls the interpretation of the Policy. See id. (applying New York law in similar context).
Michael Cassella contends that New York Insurance Law mandates that Plaintiff must provide coverage in the instant circumstances. Section 3420(e) of the New York Insurance Law provides:
No policy or contract of personal injury liability
insurance or of property damage liability insurance,
covering liability arising from the ownership,
maintenance or operation of any motor vehicle or of
any vessel as defined in section fortyeight of the
navigation law [N.Y. Navig. § 48(3)], shall be
issued or delivered in this state to the owner
thereof, or shall be issued or delivered by any
authorized insurer upon any such . . . vessel then
principally garaged or principally used in this
state, unless it contains a provision insuring the
named insured against liability for death or injury
sustained, or loss or damage occasioned within the
coverage of the policy or contract, as a result of
negligence in the operation or use of such . . .
vessel . . . by any person operating or using the
same with the permission, express or implied, of the