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Town of Amherst and Granite State Insurance Company, Plaintiffs-Respondents v. Arthur Hilger

March 22, 2013

TOWN OF AMHERST AND GRANITE STATE INSURANCE COMPANY, PLAINTIFFS-RESPONDENTS,
v.
ARTHUR HILGER, SALLY BISHER, DEFENDANTS-APPELLANTS, AND AARON HILGER, DEFENDANT. (APPEAL NO. 2.)



Appeal from a judgment of the Supreme Court, Erie County (Paula L. Feroleto, J.), entered January 23, 2012.

The opinion of the court was delivered by: Fahey, J., J.

Town of Amherst v Hilger

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on March 22, 2013

PRESENT: SMITH, J.P., FAHEY, VALENTINO, WHALEN, AND MARTOCHE, JJ.

OPINION AND

The judgment awarded plaintiffs the sum of $30,230,533.15 against defendants Arthur Hilger and Sally Bisher.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by denying plaintiffs' motion in its entirety and as modified the judgment is affirmed without costs, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following Opinion by Fahey, J.:

I

This appeal arises from the refusal of Arthur Hilger and Sally Bisher (collectively, defendants), who were officers of nonparty McGonigle and Hill Roofing, Inc. (M & H), to seek insurance coverage from nonparty New York State Insurance Fund (SIF), M & H's insurer,with respect to a judgment plaintiff Town of Amherst (Town) has against M & H (Town judgment). There is no dispute that M & H, which is now dissolved, had insurance coverage under a workers' compensation and employers' liability policy that was issued to it by SIF (hereafter, SIF policy) and that was effective at the time of the underlying loss. There is also no dispute that SIF has not paid the Town judgment on behalf of M & Honly because of defendants' intractable refusal to request that SIF satisfy that judgment. For the reasons set forth below, plaintiffs commenced this action against defendants and defendant Aaron Hilger (collectively, Hilgers) in an effort to force the Hilgers to ensure SIF's compliance with the terms of the SIF policy.

Plaintiffs moved for summary judgment seeking, inter alia, a money judgment against the Hilgers and an order directing the Hilgers to take all necessary actions to ensure that SIF complies with the SIF policy. The Hilgers, in turn, cross-moved for summary judgment dismissing the complaint. Supreme Court granted that part of the cross motion seeking summary judgment dismissing the complaint against Aaron Hilger and otherwise denied the cross motion. The court also granted plaintiffs' motion insofar as it related to defendants and awarded plaintiffs judgment in the amount of $30,230,533.15. On defendants' appeal, we conclude that the judgment should ...


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