Certain Underwriters at Lloyds, London v Millennium Holdings LLC

2008 NY Slip Op 05336

Decided on June 10, 2008

Appellate Division, First Department

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

Decided on June 10, 2008
Tom, J.P., Mazzarelli, Gonzalez, DeGrasse, JJ.
3868 3869 3869A 600626/06






Simpson Thacher & Bartlett LLP, New York (Bryce L.
Friedman of counsel), for AIU Insurance Company, Granite State
Insurance Company, Lexington Insurance Company, National
Union Fire Insurance Company of Pittsburgh, PA, New
Hampshire Insurance Company, Travelers Casualty & Surety
Company and The Travelers Indemnity Company, appellants.[*2]
Zuckerman Spaeder LLP, Washington, DC (Carl S. Kravitz of
counsel), for Certain Underwriters at Lloyds, London,
appellants.
Rivkin Radler LLP, Uniondale (David M. Cassidy of counsel),
for Government Employees Insurance Company, OneBeacon
America Insurance Company, Republic Insurance Company and
Riunione Adriatica DiSicurta, appellants.
Kelley Drye & Warren LLP, New York (Neil Merkl, and John
E. Heintz of the District of Columbia Bar, admitted pro hac vice,
of counsel), for Millennium Holdings LLC, Millennium
Chemicals Inc. and Millennium Inorganic Chemicals, Inc.,
respondents.
Dickstein Shapiro LLP, Washington, DC (Leon B. Kellner of
counsel), for NL Industries Inc., respondent.

Judgment, Supreme Court, New York County (Helen E. Freedman, J.), entered December 3, 2007, dismissing the cross claims of defendants Travelers and the remaining defendants-appellants (collectively, the AIG defendants) in favor of an Ohio action, based on an order, entered November 8, 2007, which also denied Travelers' motion for summary judgment, unanimously affirmed, with costs. Appeal from the underlying order unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Order, same court and Justice, entered December 26, 2007, which denied the cross motion of defendants OneBeacon
America, Republic, Government Employees and Riunione Adriatica to enjoin NL Industries from maintaining actions in Texas, unanimously reversed, on the law and the facts, with costs, and the cross motion granted.

Deference to the long-pending comprehensive Ohio action was warranted, as we ruled in this case in October 2007 (44 AD3d 536, 537); the first-filed rule does not govern here (see ACE Fire Underwriters Ins. Co. v ITT Indus., Inc., 44 AD3d 404, 405 [2007]). Travelers was not entitled to summary judgment on its defense of release; the interpretation of the settlement agreement at issue presented an issue for the Ohio court, which ruled in favor of resorting to extrinsic evidence.

In view of NL's forum-shopping in commencing parallel Texas actions just after the insurers had brought suit in New York, this Court's clear indication in our October 2007 ruling that the dispute has a greater nexus to New York, and the possibility of conflicting rulings, NL should have been enjoined from maintaining its Texas action (see Jay Franco & Sons Inc. v G Studios, LLC, 34 AD3d 297 [2006]; Interested Underwriters at Lloyd's v H.D.I. III Assoc., 213 AD2d 246 [1995]). Under the circumstances, our deference to the Texas courts as a matter of comity is not warranted.

M-2186Certain Underwriters at Lloyds, London v

Millennium Holdings, LLC, et al.

[*3]

Motion seeking leave for an order taking judicial notice of a complaint denied.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 10, 2008

CLERK