| Stein, LLC v Lawyers Tit. Ins. Corp. |
| 2012 NY Slip Op 07291 [100 AD3d 622] |
| November 7, 2012 |
| Appellate Division, Second Department |
| Stein, LLC, Appellant, v Lawyers Title Insurance Corp.,Respondent, et al., Defendant. |
—[*1] Donald G. Davis, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of an insurance contract, the plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Ruchelsman, J.), dated August 31, 2010, as granted that branch of the motion of the defendantLawyers Title Insurance Corp. which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss somuch of the complaint as sought an award of an attorney's fee insofar as asserted against thatdefendant.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action, inter alia, to recover damages for breach of aninsurance contract against the Lawyers Title Insurance Corp. (hereinafter Lawyers Title) andLegend Abstract Corp. The plaintiff sought, inter alia, an award of an attorney's fee.
Lawyers Title moved, inter alia, pursuant to CPLR 3211 (a) (1) and (7) to dismiss thecomplaint insofar as asserted against it. The plaintiff appeals from so much of an order of theSupreme Court as granted that branch of Lawyers Title's motion which was to dismiss so muchof the complaint as sought an award of an attorney's fee insofar as asserted against it.
The plaintiff argues that, in light of Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y. (10 NY3d187 [2008]), Panasia Estates, Inc. vHudson Ins. Co. (10 NY3d 200 [2008]), and other cases, an insured may seekconsequential damages, including the recoupment of an attorney's fee, in an action it commencesagainst its insurer. "[C]onsequential damages resulting from a breach of the covenant of goodfaith and fair dealing may be asserted in an insurance contract context, so long as the damageswere' "within the contemplation of the parties as the probable result of a breach at the time of orprior to contracting" ' " (Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d at 203, quotingBi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d at 192, quotingKenford Co. v County of Erie, 73 NY2d 312, 319 [1989] [some internal quotation marksomitted]). However, nothing in Bi-Economy or Panasia alters the common-lawrule that, absent a contractual or policy provision permitting the recovery of an attorney's fee,"[a]n insured may not recover the expenses incurred in bringing an affirmative action against aninsurer to settle its rights under the policy" (New York Univ. v Continental Ins. Co., 87NY2d 308, 324 [1995]; see O'Keefe vAllstate Ins. Co., 90 AD3d 725, 726 [2011]). [*2]Moreover, to the extent the plaintiff sought an award of anattorney's fee based on the terms of the title insurance policy, documentary evidence in therecord, specifically, the title insurance policy itself, which contains no provision permitting therecovery of an attorney's fee (see e.g.Ragins v Hospitals Ins. Co., Inc., 96 AD3d 819 [2012]), conclusively disposes of theplaintiff's claim.
The plaintiff's remaining contention regarding the award of an attorney's fee is without merit.
Accordingly, the Supreme Court properly granted that branch of Lawyers Title's motionwhich was to dismiss so much of the complaint as sought an award of an attorney's fee insofar asasserted against it. Florio, J.P., Dickerson, Sgroi and Miller, JJ., concur.