Goldberg Segalla LLP, Garden City, NY (Brendan T. Fitzpatrick
and Jonathan Schapp of counsel), for appellant.
Piscionere & Nemarow, P.C., Rye, NY (Anthony G.
Piscionere and Michael Konicoff of counsel), for respondent.
M. LEVENTHAL, J.P., SANDRA L. SGROI, SYLVIA O. HINDS-RADIX,
HECTOR D. LASALLE, JJ.
DECISION & ORDER
action pursuant to Insurance Law § 3420(a)(2) to recover
the amount of an unsatisfied judgment against the
defendants' insured, commenced by motion for summary
judgment in lieu of complaint pursuant to CPLR 3213, the
defendant American States Insurance Company appeals from (1)
a decision of the Supreme Court, Westchester County (Wood,
J.), dated December 22, 2015, made after a nonjury trial, and
(2) a judgment of the same court dated February 1, 2016, in
favor of the plaintiff and against it in the total sum of $1,
that the appeal from the decision is dismissed, as no appeal
lies from a decision (see Schicchi v J.A. Green Constr.
Corp., 100 A.D.2d 509); and it is further, ORDERED that
the judgment is reversed, on the facts, and the complaint is
dismissed insofar as asserted against the defendant American
States Insurance Company; and it is further, ORDERED that one
bill of costs is awarded to the defendant American States
plaintiff commenced this action against the defendants
American States Insurance Company (hereinafter American
States), Liberty Mutual Insurance Group (hereinafter
Liberty), Safeco Insurance Company of America (hereinafter
Safeco), and Scottsdale Insurance Company (hereinafter
Scottsdale) to recover the amount of an unsatisfied judgment
it obtained in an underlying action entitled West Street
Properties, LLC v A & A Industries, LLC, commenced
in the Supreme Court, Westchester County, under Index No.
14364/09, based on an oil spill on real property owned by the
plaintiff. American States and Scottsdale had issued
commercial liability policies to the defendants in the
underlying action. The Supreme Court, in an order dated
October 5, 2012, denied the plaintiff's motion for
summary judgment pursuant to CPLR 3213 and denied the
respective cross motions of American States, Liberty, and
Safeco (hereinafter collectively the American States
defendants) and Scottsdale for summary judgment dismissing
the complaint insofar as asserted against them.
discovery was completed, the American States defendants moved
for summary judgment declaring that American States has no
obligation under the policy issued to the defendants in the
underlying action, and to dismiss the complaint insofar as
asserted against Liberty and Safeco, and Scottsdale moved for
summary judgment dismissing the complaint insofar as asserted
against it. The plaintiff cross-moved for summary judgment in
its favor. In an order dated October 3, 2014, the Supreme
Court granted summary judgment dismissing the action insofar
as asserted against Scottsdale but denied the American States
defendants' motion and the plaintiff's cross motion.
decision and order dated January 28, 2015, this Court
modified the order dated October 5, 2012, by granting summary
judgment dismissing the action insofar as asserted against
Liberty and Safeco, and otherwise affirmed the order (see
West St. Props., LLC v American States Ins. Co., 124
April 2015, a nonjury trial was held. In a decision dated
December 22, 2015, the Supreme Court found that American
States had an obligation to pay the unsatisfied judgment up
to the monetary limits of the subject policy. Thereafter, the
Supreme Court issued a judgment dated February 1, 2016, in
favor of the plaintiff and against American States in the
total sum of $1, 736, 130. We reverse.
order dated October 3, 2014, the Supreme Court properly
denied that branch of the American States defendants'
motion which was for summary judgment dismissing the
complaint insofar as asserted against American States
(see West St. Props., LLC v American States Ins.
Co., 124 A.D.3d at 879).
as here, a case is tried without a jury, this Court's
authority is as broad as that of the trial court, and this
Court may render the judgment it finds warranted by the
facts, taking into account in a close case the fact that the
trial judge had the advantage of seeing the
witnesses'" and hearing the testimony (MJAC
Realty Corp. v Boccio, 67 A.D.3d 870, 870, quoting
Northern Westchester Professional Park Assoc. v Town of
Bedford, 60 N.Y.2d 492, 499; see Manson v Kejo
Enters., LLC, 145 A.D.3d 994; Hamilton v
Blackwood, 85 A.D.3d 1116).
insurer that seeks to disclaim coverage based on its
insured's alleged noncooperation is required to
demonstrate that "it acted diligently in seeking to
bring about its insured's cooperation, that its efforts
were reasonably calculated to obtain its insured's
cooperation, and that the attitude of its insured, after the
cooperation of its insured was sought, was one of willful and
avowed obstruction'" (Matter of State-Wide Ins.
Co. v Luna, 68 A.D.3d 882, 883, quoting Thrasher v
United States Liab. Ins. Co., 19 N.Y.2d 159, 168). The
insurer has a "heavy" burden of proving lack of
cooperation (Thrasher v United States Liab. Ins.
Co., 19 N.Y.2d at 168). The inference of noncooperation
must be "practically compelling" (Matter of
Empire Mut. Ins. Co. [Stroud - Boston Old Colony Ins.
Co.], 36 N.Y.2d 719, 722).
on the evidence adduced at trial, we find that American
States met its heavy burden of proving that its insured
breached the subject policy by failing to cooperate in the
defense of the underlying action. American States made
diligent efforts, through written correspondence, numerous
telephone calls, and a visit to the insured's home, that
were reasonably calculated to bring about the insured's
cooperation. Further, its insured's attitude, after his
cooperation was sought, was one of willful and avowed
obstruction. Among other trial evidence, there was testimony
from an investigator who met with the insured at the
insured's home. The investigator testified that the
investigator told the insured that the insured risked losing
coverage under the policy if the insured refused to
cooperate. The insured, while acknowledging that he knew that
he had attorneys defending him and that a default judgment
could be entered against him if he failed to appear at a
deposition, made statements to the effect that he would