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AFTER OBTAINING AN UNPAID JUDGMENT AGAINST THE INSURED, PLAINTIFF PROPERLY SUED THE INSURER WHICH HAD DISCLAIMED COVERAGE ALLEGING THE INSURED HAD REFUSED TO COOPERATE; THE PROOF OF THE INSURED’S ALLEGED FAILURE TO COOPERATE WAS NOT SUFFICIENT TO RAISE A QUESTION OF FACT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST THE INSURER WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, in a comprehensive decision explaining the law, determined plaintiff properly sued the defendant’s insurer after obtaining an unpaid judgment against the insured. The insurer argued it had properly disclaimed coverage because the insured did not cooperate by answering questions. However, the insurer’s submissions did not demonstrate the insured’s failure to cooperate and plaintiff was entitled to summary judgment against the insurer:

[The] statutory right, presently codified at Insurance Law § 3420, among other things, “grants an injured party a right to sue the tortfeasor’s insurer, but only under limited circumstances—the injured party must first obtain a judgment against the tortfeasor, serve the insurance company with a copy of the judgment and await payment for 30 days” … . “Compliance with these requirements is a condition precedent to a direct action against the insurance company” … . * * *

Here, the insurer contended that [the insured’s] principal, Michael Stoicescu, refused to cooperate and thereby breached the subject policy. The insurer did not allege that any other individuals associated with [the insured]  failed to cooperate. Although the insurer claimed that Stoicescu refused to cooperate in the underlying action, it is undisputed that he appeared for an examination before trial where he testified at length … . The insurer failed to identify any information that Stoicescu refused to disclose, or any document that he refused to provide in connection with the underlying action … . The insurer’s contention that Stoicescu refused to respond to certain telephone calls and letters was insufficient to show “an attitude of willful and avowed obstruction” … . Furthermore, although the insurer submitted evidence to show that, after years of litigation, Stoicescu had stated during one or more telephone calls that he would not attend a trial in the underlying action, any such statements were made before a date for the trial had even been set … , and the insurer did not allege that Stoicescu actually failed to appear for any required court appearance … . DeLuca v RLI Ins. Co., 2020 NY Slip Op 05487, Second Dept 10-7-20

 

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