| Preferred Mut. Ins. Co. v SAV Carpentry, Inc. |
| 2007 NY Slip Op 08055 [44 AD3d 921] |
| October 23, 2007 |
| Appellate Division, Second Department |
| Preferred Mutual Insurance Company, Respondent, v SAVCarpentry, Inc., et al., Defendants, and Saddle Cove Associates, LLC,Appellant. |
—[*1] Methfessel & Werbel, New York, N.Y. (William J. Rada of counsel), forrespondent.
In an action for a judgment declaring that the plaintiff has no obligation to defend orindemnify the defendant SAV Carpentry, Inc., in an underlying action entitled Galarza vSaddle Cove Associates, LLC, pending in the Supreme Court, Suffolk County, under indexNo. 2003-13613, the defendant Saddle Cove Associates, LLC, appeals from an order of theSupreme Court, Suffolk County (Spinner, J.), dated July 10, 2006, which granted the plaintiff'smotion for summary judgment declaring that it has no obligation to defend or indemnify thedefendant SAV Carpentry, Inc., in the underlying action.
Ordered that the order is affirmed, with costs, and the matter is remitted to the SupremeCourt, Suffolk County, for the entry of a judgment declaring that the plaintiff has no obligation todefend or indemnify the defendant SAV Carpentry, Inc., in the underlying action.
"To effectively deny coverage based upon lack of cooperation, an insurance carrier mustdemonstrate (1) that it acted diligently in seeking to bring about the insured's cooperation, (2)that the efforts employed by the insurer were reasonably calculated to obtain the insured'scooperation, and (3) that the attitude of the insured, after his or her cooperation was sought, wasone of willful and avowed obstruction" (Allstate Ins. Co. v United Intl. Ins. Co., 16 AD3d 605, 606 [2005];see Utica First Ins. Co. v Arken, Inc.,18 AD3d 644, 645 [2005]). "[M]ere inaction by an insured, by itself, will [*2]not justify a disclaimer of coverage on the ground of lack ofcooperation" (New York State Ins. Fundv Merchants Ins. Co. of N.H., 5 AD3d 449, 451 [2004]).
Here, the plaintiff presented evidence that it sent the insured numerous letters regarding itsdiscovery obligations, and hired two separate investigators to locate and interview the principalof the insured. One of these investigators stated, in an affidavit, that the principal of the insuredavoided all attempts by the investigator to contact him for approximately one month. Thisdemonstrated that the plaintiff diligently sought the insured's cooperation by means reasonablycalculated to obtain that cooperation, and that the insured's non-cooperation consisted of willfuland avowed obstruction. The appellant failed to raise a triable issue of fact in opposition (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Therefore, theSupreme Court properly granted the plaintiff's motion for summary judgment.
The appellant's argument that the Supreme Court erred in failing to perform aconflicts-of-law analysis, and in failing to apply New Jersey law, is not properly before us since itis being raised for the first time on appeal (see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d568 [2004]) and, in any event, is without merit.
The appellant's remaining contentions are without merit.
Since this is a declaratory judgment action, the matter must be remitted to the SupremeCourt, Suffolk County, for the entry of a judgment declaring that the plaintiff has no duty todefend and indemnify the defendant SAV Carpentry, Inc., in the underlying action entitledGalarza v Saddle Cove Associates, LLC, pending in the Supreme Court, Suffolk County,under index No. 2003-13613 (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appealdismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Schmidt, J.P., Fisher,Lifson and Carni, JJ., concur.