Law Offices of Rothenberg & Burns (Jennifer A. Joseph of counsel), for appellant. Law Office of Gabriel & Shapiro, LLC (Matthew Sledzinski of counsel), for respondent.

Appeals from orders of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered June 15, 2021 and October 3, 2022. The June 15, 2021 order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint. The October 3, 2022 order, insofar as appealed from, upon reargument, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the appeal from the order entered June 15, 2021 is dismissed, as that order was superseded by the order entered October 3, 2022; and it is further,

ORDERED that the order entered October 3, 2022, insofar as appealed from, is reversed, without costs, and, upon reargument, the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the District Court, in an order entered October 3, 2022, upon granting the branch of defendant’s motion seeking reargument, denied the branch of defendant’s motion which had sought summary judgment dismissing the complaint on the ground that the unpaid portion sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule, but held, in effect pursuant to CPLR 3212 (g), that the “only issue at trial shall be whether defendant properly paid the claim to fee schedule [sic].”

Defendant supported its motion with affidavits by its claim representative and a certified professional coder, which affidavits were sufficient to establish, prima facie, that the amount plaintiff sought to recover exceeded the amount permitted by the workers’ compensation fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only [*2]an affirmation by its counsel, who did not establish that he possessed personal knowledge of the facts (see Rockland Family Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 76 Misc 3d 1126[A], 2022 NY Slip Op 50766[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; GBI Acupuncture, P.C. v 21st Century Ins. Co., 48 Misc 3d 140[A], 2015 NY Slip Op. 51235[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order entered October 3, 2022, insofar as appealed from, is reversed and, upon reargument, the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

DRISCOLL, J.P., McCORMACK and WALSH, JJ., concur.

The following numbered papers were read on this special proceeding: NYSCEF Document Numbers 1-22.

Upon the foregoing papers and a determination being made on submission,^[FN1] the within motion of Respondent to reargue, renew, and resettle the order and judgment dated July 20, 2023 (entered July 26, 2023) is determined as follows.

Although the order and judgment incorporated by reference the arbitration award and the master arbitration award, which should have sufficed in terms of setting forth a provision for interest, this Court adds the following sentence for purposes of clarification: “The interest shall accrue from August 31, 2020, which is the arbitration filing date (see 11 NYCRR 65-4.5 [s] [3], 65-3.9 [c]; Canarsie Med. Health, P.C. v National Grange Mut. Ins. Co., 21 Misc 3d 791, 797 [Sup Ct, NY County 2008]), at the rate of two percent per month, simple, calculated on a pro-rata basis using a 30-day month (see 11 NYCRR 65-3.9 [a]).”

Insofar as the motion sought to increase the attorney’s fee to $3,300.00 from the $195.00 awarded by this Court, it is noted that an evidentiary hearing is not necessary (see Webb v Greater NY Auto. Dealers Assn., Inc., 144 AD3d 1134, 1135 [2d Dept 2016] [“defendant is directed to submit an affirmation or affidavit as to the amount of such fees and expenses”]). Nonetheless, a reasonable opportunity to be heard is required and the form of a hearing is dependent upon the nature of the conduct and the circumstances of the case (see Strauss v Strauss, 171 AD3d 596, 597 [1st Dept 2019]; Martinez v Estate of Carney, 129 AD3d 607, 609 [1st Dept 2015]). Affidavits submitted provide an opportunity to be heard (see Martinez, 129 AD3d at 609). Here, Respondent failed to submit an affirmation when it interposed its cross-petition. It is not uncommon that when an attorney’s fee is sought, an affirmation detailing the work performed is submitted along with the substantive papers.

In any event, this Court observes that Attorney Roman Kravchenko submitted an affirmation as NYSCEF Doc No. 18, in which it is asserted that he spent six hours on this matter and a paralegal spent one and a half hours. Attorney Kravchenko seeks to be paid at $500.00 per hour for his work and $200.00 per hour for the paralegal’s.

“In determining what is reasonable compensation for an attorney, the court may consider a number of factors, including, inter alia, the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented, the lawyer’s experience, ability, and reputation, the customary fee charged for similar services, and the results obtained (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 839; Diaz v Audi of Am., Inc., 57 AD3d 828, 830 [2008]). The determination of reasonable attorney’s fees is generally left to the discretion of the trial court, which is often in the best position to determine those factors integral to the fixing of a reasonable fee (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 840; Miller Realty Assoc. v Amendola, 51 AD3d at 990).” (Diggs v Oscar De La Renta, LLC, 169 AD3d 1003, 1004-1005 [2d Dept 2019]; accord Matter of Freeman, 34 NY2d 1 [1974]; Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036 [2d Dept 2015].)

There should be evidence as to the amount “charged for similar services by lawyers in the community with like experience and of comparable reputation to those by whom the prevailing party was represented” (Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d 1008 [2d Dept 2010], quoting Getty Petroleum Corp. v G.M. Triple S. Corp., 187 AD2d 483, 483-484 [2d Dept 1992]). However, name partners in the New York City suburbs were found to have reasonably charged $415.00 and $410.00 respectively in a case for breach of [*3]a factoring and security agreement, such amounts “reflect[ing] the prevailing hourly rate of attorneys in the community with their experience” (RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 840 [2d Dept 2016], citing Leser v U.S. Bank N.A., 2013 WL 1952306, 2013 US Dist LEXIS 33168 [ED NY, May 10, 2013, No. 09-CV-2362 (KAM/MDG)]). In M.F. v Amida Care, Inc. (75 Misc 3d 1209[A], 2022 NY Slip Op 50426[U] [Sup Ct, Kings County 2022]), in a class action lawsuit, the court reduced the hourly rate of $800.00 for a New York City law firm’s founding partners from $800.00 to $450.00, another partner’s $600.00 rate to $300.00, and associates’ $450.00 rate to $300.00.

With respect to the difficulty of the questions involved and the skill required to handle the problems presented, this Court will not deprecate those who labor in the field of motor vehicle accident No-Fault insurance law — this Court served as a No-Fault insurance arbitrator prior to ascending to the bench — but nonetheless finds that the difficulties encountered and skills necessary to preserve arbitration awards in Article 75 proceedings are not comparable to other areas of the law where attorney’s fees are usually awarded, such as civil rights actions, corporate contract litigation, and class action lawsuits. Much of the cited case law is repetitive in No-Fault Article 75 litigation, and it is volume litigation.^[FN2] Here, the context for Attorney Kravchenko’s work was an Article 75 proceeding to vacate a master arbitration award affirming an arbitration award in favor his client in the amount of $1,537.67. By the time the file reached him, the issues had been resolved through the arbitration process. All that remained was for him to argue that the master arbitration award was neither arbitrary, capricious, nor incorrect as a matter of law (see Matter of Smith v Firemen’s Ins. Co., 55 NY2d 224, 232 [1982]; Matter of Acuhealth Acupuncture, PC v Country-Wide Ins. Co., 170 AD3d 1168 [2d Dept 2019]; Matter of Liberty Mut. Ins. Co. v Spine Americare Med., P.C., 294 AD2d 574 [2d Dept 2002]).

As for the underlying issue in the arbitration, the matter was determined by Arbitrator Anne Lorraine Russo on the basis that Petitioner’s peer review from Dr. Peter Chiu regarding left shoulder and left knee MRIs performed on the assignor on November 5, 2019 (injured on October 15, 2019), “did not sufficiently utilize the medical documentation and apply general medical standards and principals to the specific patient and circumstances in this case in support of the denial. . .” (NYSCEF Doc No. 3 at 3). Petitioner had denied payment on the ground of lack of medical necessity. This defense to payment was rejected by Arbitrator Russo, and she was sustained by Master Arbitrator Skelton, who determined that Arbitrator Russo’s award “was neither incorrect as matter of law nor arbitrary and capricious nor so irrational as to warrant vacatur” (NYSCEF Doc No. 4 at 4). Frankly, a health service provider’s retention of an attorney [*4]to preserve factual determinations made by No-Fault insurance arbitrators on mere issues of medical necessity once the case is in the Article 75 posture, does not implicate rocket science. Notably, nowhere did Attorney Kravchenko go into detail in his affirmation accompanying the cross-petition, in order to discuss the peer review and the medical records; there is no analysis of the MRI findings and the assignor’s condition which led to the MRIs being performed. Attorney Kravchenko merely relied upon his usual string of case law. Without a detailed factual analysis of the evidence, this Court ascribes little value to his work.

Assuming that seven and a half hours were spent inside Attorney Kravchenko’s law firm, this Court finds said time and labor excessive and disproportionate, considering that much of the contents of his papers (NYSCEF Doc Nos. 12 and 13), which consumed 11 pages, were boilerplate. This Court has reviewed Attorney Kravchenko’s papers submitted in various other Article 75 proceedings and they cite the usual cases concerning Article 75 review of No-Fault awards. All that changes are some details. This template fashion of submitting respondent papers in Article 75 proceedings is an efficient means of opposing them but there is no legal research needed; it has been done already. It certainly does not warrant charging $500.00 and $200.00 per hour for the respective work of an attorney and a paralegal. Those amounts are disproportionate to the amounts awarded in the above-cited cases where the litigation involved a factoring and security agreement and a class action claim.

While a lawyer’s experience, ability, and reputation are to be considered, this Court finds these factors to be of minimal significance in the overall calculation of fees. Hence, while Attorney Kravchenko appears to have a good reputation considering that he has many clients (evidenced in his recitation of prior fees awarded), these facts are found to be subordinate to the ease and lessened skill required to preserve an arbitration win in an Article 75 proceeding. His nine years of practice are not significant enough in this Court’s view to merit an increase in what was awarded. The comparables he submitted were only for his work, not for others; thus, the evidence is deficient as to similar services by lawyers in the community with like experience and of comparable reputation.

Finally, with respect to the results obtained, this Court finds that to award $450.00 or $500.00 per hour, as Attorney Kravchenko has previously obtained, is disproportionate to the ultimate value of the result achieved here. His client, Respondent, was awarded $1,537.67 in the arbitration process. To award the sought $3,300.00 to preserve $1,537.67 defies economic logic.

The New York No-Fault Insurance Regulations prescribe attorney fees for applicants who prevail in arbitration. Usually the amount is set at 20% of the sum total of the arbitration award plus interest thereon (see 11 NYCRR 65-4.6 [d]). At the time the master arbitrator considers the appeal from the arbitration award, a prevailing applicant will be awarded $65.00 per hour up to $650.00 (see 11 NYCRR 65-4.10 [j] [2]). The Regulations provide for the court to fix an applicant’s attorney’s fee in connection with an appeal from a master arbitration award, i.e., an Article 75 proceeding (see 11 NYCRR 65-4.10 [j] [4]).

Here, Respondent (the applicant in the arbitration) will receive an attorney’s fee of approximately $557.01 for the arbitration, assuming that the principal and interest are paid on [*5]December 31, 2023. This is derived from a series of calculations. One applies a 2%-per-month interest rate on $1,537.67, from August 31, 2020.^[FN3] Dividing 1,217 days by 30-day months yields a quotient of 40.56. The product of 40.56 months multiplied by 2% per month is 81.12%. 81.12% of $1,537.67 is $1,247.36. Therefore, Respondent is entitled to approximately $1,247.36 in interest on the $1,537.67 principal. The sum of those two figures is $2,785.03. The 20% arbitration legal fee on $2,785.03 equals $557.01. Respondent was awarded $195.00 as a master arbitration attorney’s fee (see NYSCEF Doc No. 4 at 6). Thus, for services in connection just with arbitration, Respondent will receive approximately $750.00. Considering the prescribed attorney’s fees per the No-Fault Regulations, awarding $3,300.00 for the Article 75 work, as brief as it was and as boilerplate as were the papers, would be an unwarranted windfall.

In awarding $195.00 in the July 20, 2023 order and judgment, this Court applied the $65.00-per-hour attorney’s fee for preparatory services in connection with a master arbitration appeal (see 11 NYCRR 65-4.10 [j] [2]. This Court applied the rationale described more fully hereinabove to what it presumed were three hours of legal work. While Attorney Kravchenko avers that he spent six hours and his paralegal spent one and a half hours, this Court finds that someone as experienced as him, laboring in mundane volume No-Fault Article 75 litigation, could have achieved the same work product in three hours. It is noted that there were no court appearances when this Court issued the July 20, 2023 order and judgment. It is noted in the amendment of the order and judgment that there was no admissible and credible evidence regarding the attorney’s fee submitted with the cross-petition.

Accordingly, that part of the within motion of Respondent to reargue, renew, and resettle the order and judgment dated July 20, 2023 is GRANTED, but the determination of July 20, 2023 is adhered to in all respects except that the decretal paragraphs of said order and judgment are amended to read as follows:

It is hereby ORDERED and ADJUDGED that the within special proceeding is determined as follows:

The within petition of Petitioner herein is DENIED, and the special proceeding is DISMISSED.

The cross-petition commenced by Respondent herein is granted.

The master arbitration award in American Arbitration Association Case No. 99-20-1177-2271 of Master Arbitrator James J. Skelton, which affirmed the award of Arbitrator Anne Lorraine Russo, is confirmed in its entirety.

Respondent herein is awarded the principal amount, interest, attorney’s fees, and return of filing fee as determined in the arbitration (see the arbitration award and the master arbitration award). The interest shall accrue from August 31, 2020, which is the arbitration filing date (see 11 NYCRR 65-4.5 [s] [3], 65-3.9 [c]; Canarsie Med. Health, P.C. v National Grange Mut. Ins. Co., 21 Misc 3d 791, 797 [Sup Ct, NY County 2008]), [*6]at the rate of two percent per month, simple, calculated on a pro-rata basis using a 30-day month (see 11 NYCRR 65-3.9 [a]).

Petitioner herein shall pay Respondent herein an attorney’s fee of $195.00 for work performed by counsel on this Article 75 proceeding, in the absence of admissible and credible evidence from Respondent herein as to the dates and hours during which work was performed (see 11 NYCRR 65-4.10 [j] [4]), submitted with the cross-petition.

Respondent herein shall recover from Petitioner herein the costs and disbursements as allowed by law to be taxed by the Clerk.

The awards are neither arbitrary, capricious, nor incorrect as a matter of law (see Matter of American Tr. Ins. Co. v Right Choice Supply, Inc., 78 Misc 3d 890 [2023]).

The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 20, 27, 28, 29, 30, 31, 32, 33, 34, 35, 39, 40, 41, 42, 43, 44, 45, 54, 55, 56, 57, 58 were read on this motion to DISMISS.

This declaratory-judgment action arises from a construction-related property damage action pending in this court. (See Board of Managers of the A Building Condominium v 13th & 14th St. Realty, LLC, Index No. 100061/2011 [Sup Ct, NY County] [Leslie Stroth, J.].) Plaintiffs, Utica Mutual Insurance Company and Utica National Assurance Company (collectively, Utica), issued insurance policies to defendants Crystal Curtain Wall System Corp. and Crystal Window and Door Systems, Ltd. (collectively, the Crystal Entities). Utica does not dispute that it has a duty to defend the Crystal Entities in the underlying action. But it seeks a declaration that it has no duty to indemnify the Crystal Entities for any judgment or settlement reached in that action.^[FN1]

The Crystal Entities move to dismiss under CPLR 3211 (a) (2) and (a) (7) or, alternatively, move under CPLR 2201 to stay this action pending the outcome of the underlying [*2]action. The Crystal Entities also seek their attorney fees incurred in defending this action. Utica cross-moves under CPLR 3212 for partial summary judgment. The Crystal Entities’ motion to dismiss is granted. Utica’s cross-motion for summary judgment is denied. The Crystal Entities’ fee request—which implicates an issue of law on which there is little New York appellate precedent—is granted.

A. The Underlying Action

The underlying action concerns the construction of two mixed use residential and commercial buildings, one of which, “Building A,” was located at 425 East 13th Street, New York, New York. (NYSCEF Doc No. 1 ¶ 83.) Crystal Window entered into a subcontract with the project’s general contractor (Hudson Meridian Construction Group, LLC) to design and install window and curtain systems as well as various other items, such as terrace doors and a glass parapet for Building A.^[FN2] (Id. ¶ 85.) On March 22, 2007, Crystal Window assigned to Crystal Curtain some or all of its rights and obligations under the subcontract. (Id. ¶ 90.) In connection with this project, Utica issued various insurance policies to the Crystal Entities for the period from February 28, 2008, through February 28, 2012. (Id. at 13-15.)

Gordon H. Smith Corp (GHSC) was retained by 13th & 14th Street Realty LLC (13th & 14th), the owner of Building A, as a consultant in connection with the construction of Building A. (Id. ¶ 93.) Allegedly on August 29, 2006, GHSC wrote that it had serious concerns with the curtain wall system’s performance, and in 2007, GHSC reported leaking conditions. (Id. ¶¶ 93, 97.) In 2008, GHSC allegedly made extensive remediation recommendations to fix the curtain wall, with which Crystal Window and Crystal Curtain claim to have complied. (Id. ¶ 98.) In January 2008, unit owners began taking possession of individual units. However, after a significant rainstorm on May 28, 2008, water infiltration during the storm caused property damage in the building including moldy conditions. (Id. ¶¶ 99-100.)

In January 2011, the underlying action was commenced in connection with the alleged construction defects that led to the water damage. The complaint asserted claims against the Crystal Entities for the cost of repair or replacement of the allegedly defective curtain wall, damage to unit owners’ personal property, diminution in value of the unit owners’ units, and delay damages consisting of increasing interest and carrying costs that allegedly resulted from delays in completion of the construction work. (Id. ¶ 106.)

The parties to the underlying action—which includes numerous third-party actions—remain engaged in motion practice.

B. This Action

Utica brought this action in 2022. It seeks various forms of declaratory relief defining the parameters of its duty to indemnify the Crystal Entities in the underlying action. (See id. at ¶ 216 [a]-[m].) The Crystal Entities now move to dismiss under CPLR 3211 (a) (2) on the ground that the scope and parameters of Utica’s indemnification obligations are not yet ripe for determination. And the Crystal Entities request an award of attorney fees, should they prevail in this action. Utica cross-moves for partial summary judgment under CPLR 3212 on its request for a declaration that it has no duty to indemnify the Crystal Entities in connection with the costs of [*3]repair or replacement of the curtain wall. (NYSCEF Doc No. 28.)

CPLR 3001 provides that the court “may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed.” A declaratory-judgment action “thus requires an actual controversy between genuine disputants with a stake in the outcome, and may not be used as a vehicle for an advisory opinion” (Long Is. Light. Co. v Allianz Underwriters Ins. Co., 35 AD3d 253, 253 [1st Dept 2006] [internal quotation marks omitted]). Absent a ripe, justiciable controversy, this court lacks subject-matter jurisdiction to render a declaratory judgment. The Crystal Entities argue that no justiciable controversy exists here, and therefore that the action should be dismissed under CPLR 3211 (a) (2). This court agrees.

A. Whether Utica’s Declaratory-Judgment Claim Implicates a Justiciable Controversy

An insurance-coverage declaratory-judgment action is “premature”—and therefore subject to dismissal—”where the complaint in the underlying action alleges several grounds of liability, some of which invoke the coverage of the policy, and where the issues of indemnification and coverage hinge on facts which will necessarily be decided in that underlying action.” (Hout v Coffman, 126 AD2d 973, 973 [4th Dept 1987]; accord Allstate Ins. Co. v Santiago, 98 AD2d 608, 608 [1st Dept 1983] [reversing denial of motion to dismiss declaratory-judgment action] [“[T]he policy in this State has been to deny the declaratory judgment where the matter in dispute can be determined in the basic negligence action. . . .”].) If, on the other hand, the coverage question can be resolved as a matter of law in advance of fact-finding in the underlying action, a declaratory-judgment action about the scope of the duty to indemnify may be maintained. (See Brookhaven Mem. Hosp. Med. Ctr. v County of Suffolk, 155 AD2d 404, 406 [2d Dept 1989] [holding that when the policy language at issue is clear, such that “the matter in dispute does not depend upon any fact that may be determined in the underlying action, there is no reason to suspend resolution of this matter until after its adjudication”].)

The question, then, is whether the current record permits this court to determine now either that Utica’s policies do not extend coverage to the Crystal Entities’ claimed losses for which coverage disputes exist, or that exclusions within the policies oust otherwise-applicable coverage for those losses.

The Crystal Entities argue that Utica’s entitlement (or not) to the various sub-declarations requested in the complaint (see NYSCEF No. 1 at ¶ 216) turns on unresolved factual questions with respect to each of those declarations.^[FN3] (See NYSCEF No. 17 at 16-19.) Utica effectively concedes that all but one of the requested declarations “depend on facts developed in the Underlying Action,” such that their declaratory-judgment claim is, to that extent, not ripe for resolution. (NYSCEF No. 44 at 3-4; see also id. at 7 [“Utica recognizes that its obligations with respect to other claims cannot be determined now, because they depend on facts to be [*4]determined in the underlying case.”].) The sole declaratory-judgment claim that Utica insists is ripe now for decision is its request for a declaration that “no coverage is available under the Utica policies for the cost of repair or replacement of the curtain wall.” (Id. at 7.) This request is not justiciable.^[FN4]

Utica advances three reasons why this court can conclude now that no coverage is available for curtain-wall replacement or repair costs: (i) those costs do not qualify as a covered “occurrence” under the policies; (ii) coverage for the costs is barred by the “your work” policy exclusion; and (iii) coverage for the costs is barred by the “your product” policy exclusion. None of these reasons are persuasive.

With respect to whether the curtain-wall costs are a covered occurrence, Utica relies on a line of Appellate Division cases holding that policies like the ones at issue here “do not insure against faulty workmanship in the work product itself, but rather faulty workmanship in the work product which creates a legal liability by causing bodily injury or property damage to something other than the work product.” (George A. Fuller Co. v United States Fid. & Guar. Co., 200 AD2d 255, 259 [1st Dept. 1994].) Because the glass curtain wall at issue is the Crystal Entities’ own work product, Utica argues, the Crystal Entities do not have coverage for the costs to repair or replace the wall. But this argument begs the crucial question: Whether the damage to the curtain wall necessitating its repair or replacement stemmed from defective design or installation of the wall itself (by the Crystal Entities or their subcontractors), or instead from defective work on other components of the building carried out by other parties. As the Crystal Entities point out (see NYSCEF No. 54 at 24), Utica has not identified evidence that answers that question in advance of fact-finding in the underlying action.

The “your product” exclusion ousts coverage for “‘[p]roperty damage’ to ‘your product’ arising out of it or any part of it.” (NYSCEF No. 3 at 45.) This exclusion does not necessarily oust coverage for the costs of repairing or replacing the curtain wall, for the same reasons just discussed. The record does not (yet) establish whether the damage to the curtain wall requiring its repair/replacement “ar[ose] out of it”—i.e., from defects in the wall itself—or arose instead from defects in other components of the building.

The “your work” exclusion bars coverage for “[p]roperty damage’ to ‘your work’ arising out of it or any part of it”—but not “if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.” (Id.) Again, it is not yet clear how the damage to the curtain wall arose; or what part of the work on the curtain wall was performed by the Crystal Entities themselves, and what part by one or more subcontractors. Absent that information, this court cannot now determine the applicability of the “your work” exclusion.

In short, like the other coverage issues raised by Utica’s declaratory-judgment complaint, whether coverage exists for curtain-wall-related costs depends on further fact-finding. That issue is not ripe for decision now.

Utica asserts that a justiciable controversy nonetheless exists because it needs to assess properly their obligations to accept or reject any possible settlement offer that may be within the limits of plaintiff’s policies. (See NYSCEF No. 44 at 3.) But the relevance of coverage for the costs to repair/replace the curtain wall is contingent: it will arise only if (i) a settlement demand [*5]is made against the Crystal Entities in the underlying action that includes curtain-wall-related costs and is within the limit of the applicable Utica policies; and (ii) the Crystal Entities then demand that Utica pay to settle the claims against them. Utica provides no information on the likelihood of this contingent possibility being realized, nor when that might occur. In these circumstances, a declaratory judgment would be premature. (See Murad v Russo, 74 AD3d 1823, 1824 [4th Dept 2010] [holding that plaintiff’s request for a declaratory judgment about the extent of her entitlement to insurance proceeds is not ripe for adjudication because “although the record establishes that defendant’s insurer was amenable to settling the actions for the limits of the policy in question, it cannot be said with certainty that such settlements would occur”].)

Utica’s declaratory-judgment claims, therefore, are unripe and not justiciable at this time. Utica’s cross-motion for partial summary judgment on its curtain-wall claim is denied.^[FN5]

B. Whether Utica’s Declaratory-Judgment Claim Should be Dismissed or Stayed

Utica contends that this court should stay, rather than dismiss, any declaratory-judgment claims that the court concludes are unripe, because the “factual predicate that will be necessary to resolve these other issues may be developed in the underlying case before that case is concluded, and those issues would therefore become ripe for determination in this case.” (NYSCEF No. 44 at 18.) Although a court lacks jurisdiction to issue a declaratory judgment absent a justiciable controversy, a court does have discretion, in appropriate circumstances, to stay an unripe declaratory-judgment action, instead of dismissing it altogether. (See Allstate Ins. Co. v Kemp, 144 AD2d 853, 854 [3d Dept 1988] [affirming order that stayed a premature declaratory-judgment action].) This court concludes, however, that staying Utica’s action would not be appropriate here. The underlying action is complex and slow-moving. It is unclear to this court—and Utica does not attempt to provide clarity—when the factual questions bearing on Utica’s potential duty to indemnify the Crystal Entities will be resolved in that action. This court declines to leave the current action in a holding pattern for an open-ended (and presumably lengthy) period. This action is therefore dismissed without prejudice to its renewal once it is no longer premature.

The Crystal Entities seek reimbursement of their reasonable attorney fees incurred in defending this declaratory-judgment action. (See NYSCEF No. 16 [notice of motion]; NYSCEF No. 17 at 21-22 [mem. of law].) This attorney-fee request implicates a legal question about the parameters of a prevailing insured’s entitlement to attorney fees from its insurer that New York appellate courts appear not to have considered. For the reasons set forth below, the request is granted.

A. Reasons Why the Crystal Entities Should be Entitled to Reimbursement of Defense Costs

When an insured “is cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations,” and the insured then prevails, it may recover attorney fees “incurred in defending against the insurer’s action.” (U.S. Underwriters Ins. Co. v [*6]City Club Hotel, LLC, 3 NY3d 592, 597-598 [2004].) This principle is not a policy-based “exception to the American rule,” under which each party bears its own litigation costs unless a statute or contract shifts the obligation to pay fees. (Chase Manhattan Bank v Each Individual Underwriter Bound to Lloyd’s Policy No. 790/004A89005, 258 AD2d 1, 5 [1st Dept 1999] [emphasis added].) Rather, it derives from the insurer’s duty as a matter of contract to defend its insured—akin, analytically, to a fee-shifting contractual indemnity provision.^[FN6] (See id.)

In this case, Utica’s declaratory-judgment action cast the Crystal Entities in a defensive posture by asserting that Utica need not indemnify them for various increments of their potential obligations under a judgment or settlement in the underlying action. And, for the reasons given above, this court concludes that the Crystal Entities should prevail, because the action is subject to dismissal as premature.

It would appear to follow straightforwardly, therefore, that the Crystal Entities are entitled to attorney fees. Utica claims, however, that the answer is not so simple. As noted at the outset of this decision, Utica did not, and does not, dispute its duty to defend the Crystal Entities in the underlying action. Utica argues that in this unusual scenario, the Crystal Entities’ fee request falls outside the scope of the holding of the Court of Appeals’s decision in City Club Hotel and its forerunner precedents. That is, Utica contends, “[w]hen it is only the duty to indemnify that an insurer has placed at issue,” not also the duty to defend, a prevailing “policyholder is not entitled to attorney fees.” (NYSCEF No. 44 at 17 [emphasis added].)

The parties do not cite, and this court has not found, any decision of the Court of Appeals or the Appellate Division discussing whether a prevailing policyholder is entitled to attorney fees when the insurer has acknowledged a duty to defend but contested the duty to indemnify.^[FN7] At [*7]most, in Public Service Mutual Insurance Co. v Jefferson Towers, Inc. (186 AD2d 10, 11 [1st Dept 1992]), the First Department held that the insured was entitled to attorney fees, after the insurer had paid defense costs in the underlying action but challenged, unsuccessfully, its obligation to pay the judgment rendered against the insured in that action. (See Jefferson Towers, Inc. v Public Serv. Mut. Ins. Co., 195 AD2d 311, 312 [1st Dept 1993] [discussing the background of the Court’s decision on the prior appeal].) But the Jefferson Towers Court did not consider whether the insurer’s duty-to-defend/duty-to-indemnify split in that case should affect the insurer’s obligation to pay the insured’s attorney fees. Nor can one tell from the decision whether the insurer even raised an argument on that point.^[FN8] (See Jefferson Towers, 186 AD2d at 11.)

Absent binding appellate precedent considering the question, this court concludes for itself that a policyholder is entitled to attorney fees when it prevails in the defense of an action brought by an insurer to challenge only the insurer’s duty to indemnify. New York doctrine in this area rests on the insurer’s duty to defend its insured in “any action arising out of the occurrence, including a defense against an insurer’s declaratory-judgment action.” (City Club Hotel, 3 NY3d at 598 [emphasis added].) This is true when an insurer contests both the duty to defend and to indemnify. (See id.) No logical reason exists why it should be different—why an insurer’s duty to defend its insured should suddenly cease—when the insurer disputes only the duty to indemnify. And the Court of Appeals’s holdings in this area have always been phrased in broad terms that would encompass an insurer’s indemnification-only challenge: They permit recovery by the insured that prevails against “the legal steps an insurer takes in an effort to free itself from its policy obligations,” period—not merely the insurer’s policy obligation to defend. (Id. at 597 [emphasis added].)

B. Utica’s Counter-Arguments

In arguing otherwise, Utica relies on decisions of the U.S. Court of Appeals for the Second Circuit. Those decisions hold, Utica says, that “if the insurer has not placed the duty to defend at issue, the insurer need not reimburse the policyholder’s attorney’s fees, even if the policyholder is successful.” (NYSCEF No. 44 at 17, citing New York Marine & Gen Ins. Co. v Lafarge N. Am., 599 F3d 102 [2d Cir 2010]; Liberty Surplus Ins. Co. v Segal Corp., 420 F3d 65 [2d Cir 2005]; see Employers Mut. Cas. Co. v Key Pharmaceuticals, 75 F3d 815, 824 [2d Cir 1996]).) This court concludes, though, that these Second Circuit decisions misapprehend the governing precedents in this area of the Court of Appeals and the Appellate Division.

In Key Pharmaceuticals, the Second Circuit’s holding rested on its reading of the First [*8]Department’s decision in Aetna Casualty & Surety Co. v Dawson (84 AD2d 708, 709 [1st Dept 1981]), in which the First Department declined to require the insurer to pay attorney fees. The Key Pharmaceuticals court understood Dawson to hold that the a “fundamental” reason for its decision “was that the insurer’s duty to defend was not at issue” in the case. (75 F3d at 824.) Thus, the Second Circuit concluded, the New York doctrine “does no more than carve out a narrow exception to the general rule that litigation costs are not recoverable by a winning litigant” that arises only “when a policyholder has been cast in a defensive posture by its insurer in a dispute over the insurer’s duty to defend,” in particular. (Id., citing Mighty Midgets Inc. v Centennial Ins. Co., 47 NY2d 12, 21-22 [1979].) But Dawson did not rest its holding on the absence of a dispute between insurer and insured over the duty to defend. It held, instead, that in the particular context of the parties’ dispute (which rested on the uninsured-motorist endorsement to an automotive insurance policy), the parties seeking attorney fees were not owed a duty to defend by the insurer. (84 AD2d 708, 709.) Instead, “[w]hat is essentially in dispute here is a contract claim,” not an insurance claim invoking an insurer’s duty to defend. (Id. [emphasis added].) No duty to defend, no defense-based obligation to pay attorney fees incurred in the coverage action.

In Segal, the Second Circuit declined to revisit its decision in Key Pharmaceuticals. The Segal court stated that although the New York Court of Appeals had described its doctrine in “broad language” that permitted an insured to recover fees whenever it is defending an insurer’s “‘effort to free itself from its policy obligations,'” Key Pharmaceuticals had instead glossed the doctrine as applying only when the insured “has been cast in a defensive posture by its insurer in a dispute over the insurer’s duty to defend.” (Segal, 420 F3d at 67, quoting Mighty Midgets, 47 NY2d at 21 [internal quotation marks and emphasis omitted].) The insured in Segal argued that the Court of Appeals’s decision in City Club Hotel had undermined the holding of Key Pharmaceuticals, because the insurer’s declaratory-judgment claims in City Club Hotel contested the duty to indemnify. (Segal, 420 F3d at 68.) The Second Circuit rejected this argument. Because City Club Hotel clearly involved a dispute over both the duty to defend and the duty to indemnify, the award of fees to the insured in that case did not call into question the ruling in Key Pharmaceuticals. (See id.)

Curiously, the Segal Court recognized that the rationale of Mighty Midgets and City Club Hotel “is that an insurer with a duty to defend must provide a defense (or reimburse the insured’s litigation expenses) for any action arising out of the claim or occurrence that triggers the duty to defend, including an action brought by the insurer itself.” (Id. at 69 [emphasis added].) But Segal refused to accept that “any action” means “any action”—that the duty to defend, where one exists, is triggered even when the insurer’s action against the insured challenges only the duty to indemnify. This refusal may have stemmed from the concern expressed by the Second Circuit in Segal that ruling that “attorneys’ fees are due whenever an insurer brings suit to disclaim the duty to indemnify, or whenever an excess insurance policy incorporates a primary policy with a duty to defend,” would “dramatically expand” the “Mighty Midgets exception to the point that it swallows the rule.” (Id. at 70.) But the solution to that problem would be for courts to consider carefully, before awarding fees, whether an insurer bringing the unsuccessful coverage action [*9]has a duty to defend its insured in the particular circumstances of the case.^[FN9] It is not to hold instead, as the Second Circuit has done, that where a duty to defend does exist, an insurer need not pay fees if it has unsuccessfully challenged only the duty to indemnify.

Finally, in Lafarge North America, the Second Circuit simply applied its holdings in Key Pharmaceuticals and Segal, without considering those holdings fresh. (See 599 F3d at 128.) The objections raised to those two prior decisions thus apply equally to Lafarge North America.

In short, this court is not persuaded by the Second Circuit decisions applying New York law on which Utica relies, and declines to follow them here.

Accordingly, it is

ORDERED that the branch of the Crystal Entities’ motion seeking dismissal of the complaint is granted, and the action is dismissed, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that Utica’s cross-motion for partial summary judgment is denied; and it is further

ORDERED that the branch of the Crystal Entities’ motion seeking an award of its reasonable attorney fees incurred in defending this action is granted; and it is further

ORDERED that the Crystal Entities may enter a supplemental judgment for the amount of their reasonable attorney fees, with the amount of those fees to be determined by motion made on notice; and it is further

ORDERED that the Crystal Entities serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly.

RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION

[*2]INTRODUCTION

Defendant moves This Honorable Court by Notice of Motion for Summary Judgment pursuant to CPLR 3212 to Dismiss Action in its entirety, and for such other and further relief deemed just and proper. For the reasons set forth below, it is hereby DENIED.

Plaintiff NYRX Pharmacy Inc. commenced this No-Fault action January 17, 2020, for the amount of $3,880.30 in payment of medical services rendered to assignor, Danferlin Ortiz, for injuries allegedly sustained as result of motor vehicle accident (hereinafter referred to as MVA) as against insured Joshua Guzman Lorenzo’s purported insurer, Farmers Insurance Company, policy number XXXXX. Issue was joined on or about March 3, 2020. The alleged subject MVA occurred on or about November 29, 2018, 2:27 p.m. as insured Joshua Guzman Lorenzo in his vehicle was stopped at a traffic light at the intersection of East 150 Street and Prospect Avenue in Bronx, New York, when his vehicle was rear-ended by Edwin S Baez driving a U-Haul truck, insured by Repwest Insurance Company. The assignor herein, Danferlin Ortiz was a passenger along with another passenger, Gaderlin Ortiz, in Joshua Guzman Lorenzo’s vehicle. It has been alleged that all parties herein this MVA are related by consanguinity or affinity. As a result of alleged injuries thereto, all three occupants of the insured’s vehicle, including assignor Danferlin Ortiz were rendered medical services, of which Farmers Insurance Company designated its claim number as 5006678777. Plaintiff sued upon amount of $3,880.30, consists of two bills, date of service December 27, 2018, for $2,951.00 which Defendant conceded as received on or about February 25, 2019, and date of service January 12, 2019 for $929.30 which Defendant also conceded as received on or about February 28, 2019. Defendant generated verification requests by a delay letter dated March 11, 2019, pending the Examination Under Oath (hereinafter referred to as EUO) of the claimants.

EUO was scheduled by Buratti, Rothenberg & Burns, staff counsel to Mid-Century Insurance Company for February 14, 2019 at 12:00 p.m. with notice mailed January 29, 2019 to be held at US Legal Court Reporting Concourse Plaza West Shopping Center, 206 East 161st Street, Bronx, NY 10451. Second EUO was scheduled for March 12, 2019 at 12:00 p.m. with notice mailed February 19, 2019 at same location. Konstantinos Tsirkas, counsel for Defendant Mid-Century Insurance Company states in an affirmation “On 2/14/19 AND 3/12/19, I was present at US Legal Court Reporting, Concourse Plaza West Shopping Center, 206 East 161st Street Bronx, NY 10451, in order to conduct an Examination Under Oath of Danferlin Ortiz, in regard to claim no: 5006678777 and date of loss November 29, 2018. The EUO was scheduled for 12:00 p.m. The witness failed to appear for the scheduled EUO. After waiting one hour beyond the time of the scheduled EUO, counsel placed a statement on the record in the presence of a notary public of the State of New York” (Tsirkas aff, exhibit J, ¶3-4).

It is unclear exactly what was the chain of custody for the alleged two affidavits/criminal confessions that were allegedly provided to Defendant by Repwest Insurance Company. There is merely a statement by affiant Defendant claims representative, Richard Tirino:

“The Defendant was alerted by Repwest Insurance Company, the insurance carrier of the UHaul truck, that the two drivers of the subject vehicles, JOSHUA GUZMAN LORENZO and EDWIN BAEZ, admitted to staging the accident after being promised $500.00 for their participation. It was also revealed that the two drivers JOSHUA GUZMAN LORENZO and EDWIN BAEZ are related. The signed and notarized affidavits of claimants/drivers JOSHUA GUZMAN LORENZO and EDWIN BAEZ [*3]admitting to staging the accident are annexed to the within motion” (Tsirkas aff, exhibit D, ¶ 17).

Affiant Torino states that both affidavits/criminal confessions by the allegedly related by consanguinity or affinity Guzman-Lorenzo and Baez were notarized. On the contrary, the insured Guzman-Lorenzo’s, dated January 17, 2019 was not notarized. Of note, his affidavit/criminal confession was entered into seven days after his counsel declined further representation (Tsirkas aff, exhibit F). Most notably, the purported affidavit/criminal confession attributed to Guzman-Lorenzo is a fillable form captioned Repwest Insurance and at the notarial region of the form the word “witness” was circled and not “notary public” (Tsirkas aff, exhibit G). Thereat affixed is a signature with no line for printing of the name of the putative signatory to be able to identify such alleged witness and her interest or disinterest in the matters contained therein this fillable form alleged affidavit/criminal confession, whereas there is a line for printing the affiant’s name. Further, the alleged affiant’s name was misspelled as “Josha Emanuel Lorenzo-Guzman” twice, whereas his legal name as indicated at the bottom right hand of the form in his alleged New York State Driver License is “Joshua Emanuel Guzman-Lorenzo” (Tsirkas aff, exhibit G). Within this fillable form alleged as affidavit/criminal confession is visibly contained at least two different hand writings in designated spaces with typed in text:

“The Collision was intentionally caused and was in no way accidental in nature. I have personal knowledge that the Collision was intentionally caused because I participated in it as a (driver/passenger) of the (UH/adverse) vehicle with the expectation that I would profit monetarily as a result. I Joshua E. Guzman Lorenzo was promised $500.00. I hereby acknowledge that on Jan. 17, 2019 I gave a verbal confession to Investigator Bernard E Moran, in which I admitted to participating in this intentionally staged Collision, and provided the details concerning same to the investigator. Investigator Bernard E Moran advised me prior to the interview that he would be recording my verbal statement, and I gave him my consent to do so. I submit this affidavit voluntarily. I was not threatened, intimated, or otherwise forced to or coerced into giving the verbal statement or executing this affidavit” (id. at 1, ¶ 3-6).

Unlike Guzman-Lorenzo’s affidavit/criminal confession, Edwin Baez’s dated January 12, 2019 was notarized and all spaces in the fillable form were typed in text and not handwritten in. Baez is the driver/lessee of the rear-ending colliding U-Haul, insured by Repwest Insurance bearing claim number 01308341-2018. The language contained within the affidavit/criminal confession is similar with same substance and general fact import:

“The Collision was intentionally caused and was in no way accidental in nature. I was not injured and no one from the adverse Vehicle said they were injured. I was directed by a person not known to me to crash into the 2009 Honda Sedan owned by Mr. [sic] Guzman, Lorenzo, Joshua Emanuel a family member of my family. I have personal knowledge that the Collision was intentionally caused because I participated in it as a (driver Lessee) of the (U-Haul) vehicle Equipment with the expectation that I would profit, or a party involved would profit monetarily as a result. I was not informed about the details of any money amounts. I hereby acknowledge that on January 9th, 2019, I gave a verbal confession to Investigator Bernard E Moran, in which I admitted to participating in this intentionally staged Collision, and provided the details concerning same to the Investigator. Investigator Bernard E Moran advised me prior to the interview that he would be recording my verbal statement, and I gave him my consent to do so. This [*4]recorded statement was taken over my cell number to my mother’s cell phone while investigator Bernard E Moran recorded the interview onto his cell phone in the presence of my Mother inside my family apartment at I submit this affidavit voluntarily, I was not threatened, intimidated, or otherwise forced to or coerced into giving the verbal statement of executing this affidavit” (id. at 2, ¶ 3-6).

Defendant filed the instant Motion for Summary Judgment and to Amend the Caption on May 4, 2021, seeking an order pursuant to CPLR § 3025 (b) for leave to amend the caption to change Defendant’s name from Farmers Insurance Company to their underwriting company, Mid-Century Insurance Company and an order pursuant to CPLR §3212 granting summary judgment in favor of Defendant on grounds that Plaintiff’s assignor allegedly failed to appear for Examinations Under Oath and that material and false representations were made in the presentation of the claim. The motion was adjourned to July 19, 2021, November 16, 2022, March 6, 2023, and oral arguments heard on September 19, 2023, with decision reserved.

It is well-established law that summary judgment is a drastic remedy in that it deprives the non-movant party of her day in court and should only be granted if there is no material and triable issue of fact (Sillman v Twentieth Centurv-Fox Film Corp., 3 NY2d 395 [1957]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The burden is upon movant to make its prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to demonstrate the absence of any material issue of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; see also Giuffrida v Citibank, 100 NY2d 72 [2003]). It must clearly appear to the court that unequivocally there is no material and triable issue of fact presented from the motion papers (Di Menna & Sons v City of New York, 301 NY 118 [1950]). Where the court finds an existence of such an issue or where the issue may be so deemed “arguable” requires denial of summary judgment (Braun v Carey, 280 App Div 1019 [3d Dept 1952]; Barrett v Jacobs, 255 NY 520, 522 [1931]). “Issue-finding, rather than issue-determination, is the key to the procedure” for the court (Esteve v Avad, 271 App Div 725, 727 [1st Dept 1947]; Gravenhorst v Zimmerman, 236 NY 22, 38-39 [1923]). In evaluating a motion for summary judgment, a court is not to engage in determining credibility of an issue, but rather whether there exists an issue that requires determination of credibility (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). Moreover, where the court finds that there is even one material relevant issue that requires determination of credibility, in and of itself is sufficient for denial of motion (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404-05 [1957]). Where the court finds but a scintilla of doubt as to the existence of a triable issue of fact in dispute, summary judgment must be denied (Moskowitz v Garlock, 23 AD2d 943 [3d Dept 1965]). When reviewing the motion, the papers must be strictly scrutinized in the light most favorable to the opposing party and inferences that may be drawn therefrom must be accepted as true (Dykeman v Heht, 52 AD3d 767, 769, 861 NYS 2d 732 [2d Dept 2008]; see Pearson v Dix McBride, 63 AD3d 895, 883 [2nd Dept 2009]; Robinson v Strong Mem. Hosp., 98 AD2d 976 [4th Dept 1983]). Movant has the initial burden of coming forward with admissible evidence to support the finding of a prima facie entitlement as to warrant the court’s directing judgement in movant’s favor as a matter of law notwithstanding sufficiency of opposition or lack thereof (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once movant’s burden has been met, burden to rebut then shifts to the opposition to demonstrate, by admissible [*5]evidence, the existence of a material factual issue in dispute requiring a factfinder’s determination at trial (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v Citv of New York, 49 NY2d 557 [1980]). Opposition must “produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he [or she] rests his [or her] claim or must demonstrate an acceptable excuse” for failure to so do (id. at 560; Pride Acquisitions LLC v Benson, 2012 NY Misc LEXIS 5839, 2012 NY Slip Op 33065 [U] [Sup Ct 2012]). Conclusory vague contrived protestations not relevant nor material to overcome the burden to defeat judgement as a matter of law cannot be relied upon. Nor may opposition papers to rebut rely upon general overbroad allegations or mere immaterial non-relevant facts or law, unsupported by competent admissible evidence sufficient to require a trial (Fileccia v Massapequa Gen. Hosp., 63 NY2d 639 [1984]; Bustamonte v Koval, 98 AD2d 739 [2d Dept 1983]; Pan v Coburn, 95 AD2d 670 [1st Dept 1983]; Himber v Pfizer Labs., 82 AD2d 776 [1st Dept 1981]; Baldwin v Gretz, 65 AD2d 876 [3d Dept 1978]; Century Ctr. Ltd. v Davis, 100 AD2d 564 [2d Dept 1984]). Thus, where non-movant provides such admissible proof as to the existence of any material issue of fact that lends itself to doubt, equivocation, or credibility then this issue of fact must be determined by the factfinder either by judge or jury precluding summary judgement (Moskowitz v Garlock, 23 AD2d 943, 259 NYS 2d 1003 [3d Dept 1965]).

STAGED INTENTIONAL ACCIDENT

It is well established precedential case law, a staged or intentional vehicular collision is not a covered accident under New York State Insurance Law, thus a bar to vehicular insurance coverage (Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905-906 [2d Dept 2023], citing National Gen. Ins. Online, Inc. v Blasco, 210 AD3d 786 [2d Dept 2022]). In a most extreme example of an intentional albeit not per se staged vehicular collision which resulted in the operator being convicted of depraved indifference murder, the Appellate Division Second Department held:

“Under the automobile insurance policy issued to Eugene Wright, Allstate agreed to provide coverage for ‘accidents arising out of the ownership, maintenance or use . . . of an insured auto’. Hazel Wright’s actions of turning her vehicle around, accelerating, and striking the decedent with enough force to crush his skull, cannot be deemed ‘an accident’ within the meaning of the policy. Thus, the incident which led to the death of Robert Bostick did not fall within the scope of coverage provided by Eugene Wright’s automobile insurance policy” (Allstate Ins. Co. v Bostic, 228 AD2d 628, 628-629 [2d Dept 1996], citing People v Wright, 198 AD2d 249 [2d Dept 1993] and John Hancock Prop. & Cas. Ins. Co. v Warmuth, 205 AD2d 587 [2d Dept 1994]).

An accident is defined as an unforeseen unplanned happenstance lacking in intentionality.^[FN1] Staged by its very definition is deliberately arranged for a desired outcome thus steeped in intentionality.^[FN2] Notwithstanding that the homicide victim was an innocent third-party, the court held that the operator committed an intentional vehicular collision which was not an “accident” [*6]and thus not an insurable event and denied coverage to the third-party innocent in a wrongful death action. Indeed, it has been consistently upheld, innocent third parties injured by staged intentional vehicular collisions shall not be afforded insurance coverage (Adirondack Ins. Exch. v Rodriguez at 905-906, citing Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040 [2d Dept 2014]).^[FN3] The Insurer bears the initial burden to establish that the vehicular collision at issue is a staged intentional vehicular collision as a matter of law by the lower standard of proof, preponderance of evidence, as opposed to the higher standard of proof, clear and convincing evidence (Repwest Ins. Co. v Sasan Family Chiropractic, P.C., 2016 NY Slip Op 31413 [U] *9-11 [Sup Ct, NY County 2016], citing V.S. Med. Servs., P.C. v Allstate Ins. Co., 25 Misc 3d 39 [App Term 2009]). It is a matter of the admissible evidence proffered by the Insurer to so meet that standard of proof. Alone, alleged vehicular staged accident conspirators’^[FN4] affidavits are insufficient to meet this burden:

“Although by itself, Baptiste’s affidavit would not be sufficient, when his affidavit is considered together with the transcript of his recorded conversation detailing his role in underlying scheme as the driver of the U-Haul vehicle, as well as the affidavit of investigator Moran who personally interviewed Baptiste, recorded the conversation and certifies as to the truth of the transcription, plaintiff has made a sufficient prima facie showing that the collision was intentional and staged, and as such, is not a covered accident under plaintiff’s policy” (Repwest Ins. Co. v Sasan Family Chiropractic, P.C. at 7, citing Matter of Liberty Mut. Ins. Co. v Young, 124 AD3d 663 [2d Dept 2015], Emanvilova v Pallotta, 49 AD3d 413 [1st Dept 2008]; Matter of Travelers Indem. Co. v Cruz, 40 AD3d 362 [1st Dept 2007]; Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [2d Dept 2006]; Matter of Eagle Ins. Co. v Gueye, 26 AD3d 192 [1st Dept 2006]; State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2d Dept 2003]).

The court found that it was not the conspirator’s affidavit in and of itself that was sufficiently persuasive to meet the prima facie burden. Rather, the insurer investigator’s affidavit in which he swore under penalties of perjury that the alleged conspirator “told him that he intentionally struck the cab” was deemed “an admission and as such, properly considered as competent evidence in support of plaintiff’s prima facie case for the purpose of showing that the collision was staged” (id. at 5-6, Tower Ins. Co. of NY v Hossain, 134 AD3d 644 [1st Dept 2015]; Tower Ins. Co. of NY v Brown, 130 AD3d 545 [1st Dept 2015]; Castlepoint Ins. Co. v Jaipersaud, 127 AD3d 401 [1st Dept 2015]). The court noted that the investigator had personal knowledge as he directly spoke with the alleged conspirator, recorded the conversation, reduced the conversation to a written transcript which the investigator certified as to its accuracy and veracity of the conspirator’s verbal admission against his own interest of criminal conduct. Therefore, insurer’s admissible proffered proof by a preponderance of the evidence established that the vehicular collision was intentional and staged and thus insurer met its initial prima facie burden for summary judgment. The burden then shifted to provider seeking insurance coverage to rebut insurer’s prima facie case, which the court found it failed to do (id.). Rejected by court were the following: provider attorney’s affirmation without corroborating affidavit by affiant with personal knowledge; provider’s conclusory attack on the admissibility and veracity of the affidavits and the police accident report; and provider’s argument for time for discovery where “it has failed to show that facts essential to oppose the motion are in plaintiff’s exclusive knowledge, or that discovery may lead to facts relevant to a viable defense” in mere hope that further discovery may lead to any evidence which would support provider’s rebuttal of insurer’s prima facie case (id. at 11, see Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905-906 [2d Dept 2023], citing Santiago v City of NY, 191 AD3d 715 [2d Dept 2021]; Blake v City of NY, 148 AD3d 1101 [2d Dept 2017]).

In this instant matter, insurer fails to meet its burden to establish prima facie entitlement for summary judgment as a matter of law. Here, the insurer relies wholly on the affidavits of drivers related by consanguinity or affinity as alleged co-conspirators to attempt to prove material misrepresentation of a staged intentional accident, which has been held as insufficient. Rather, these are not merely affidavits, but alleged co-conspirators criminal confessions.^[FN5] Here, insurer does not provide affidavit of an affiant with personal knowledge as to the veracity, [*7]accuracy, reliability nor the making of these notarized criminal confessions. Insurer woefully fails in its attempt to do so by merely adding to its claim representative affidavit that Repwest Insurance alerted Defendant Insurer as to the alleged fraud and impliedly of its own volition provided both confessions to Defendant. However, where Repwest Insurance has used such fillable affidavits/criminal confessions to establish summary judgment in staged intentional accidents, corroboration by an investigator with personal knowledge engaged in recorded, formally transcribed and certified conversations with alleged conspirators eliciting admissions against own interest. Herein, these fillable affidavits/criminal confessions are rejected out of hand. The mere presence of these fillable affidavits/criminal confessions are unreliable at best. Notably, both alleged conspirators are Latinos. Are they fluent in English? Did they understand what they were signing? The alleged fillable affidavits/criminal confessions are typed and handwritten in. Who actually typed them? Who handwrote the fillable areas? Who provided the specific typed or handwritten text? Did the alleged conspirators understand that they were signing admissions to a crime that may be used against them in a criminal court of law with exposure to prison time?^[FN6] Were they given notification of their right against self-incrimination?^[FN7] Most notably, the alleged conspirators executed fillable affidavit/criminal confessions were notarized two (2) days, on January 12, 2019, and seven (7) days, on January 17, 2019, after their attorney terminated representation. Thereby not represented by counsel.

ORDERED Amendment of caption is GRANTED. The Police accident report states insurance code as 762, which is designated as Mid-Century Insurance Company.^[FN8]

There is a triable issue of fact as to alleged EUO no shows, where there is inconsistent names of proper insurer, Farmers Insurance Company or Mid-Century Insurance Company.

For the foregoing reasons, This Court finds as a matter of law that Defendant Insurer failed to satisfy its prima facie burden by a preponderance of the evidence for entitlement to summary judgment. Consequently, Defendant Insurer motion to dismiss pursuant to CPLR 3212 is hereby DENIED.

This constitutes the opinion, decision, and order of This Honorable Court.

Footnotes

Footnote 1:Merriam-Webster, https://www.merriam-webster.com/dictionary/accident (accessed Oct. 5, 2023); Vocabulary.com, https://www.vocabulary.com/di ctionary/accident (accessed Oct. 5, 2023).

Footnote 2:Vocabulary.com, https://www.vocabulary.com/dict ionary/staged (accessed Oct. 5, 2023).

Footnote 3:“[I]f GEICO can prove that the collision was staged by Robinson, its insured, it would not be obligated to provide coverage under the policy regardless of whether Pontoon was an innocent third party (Nationwide Gen. Ins. Co. v Pontoon at 1041, citing Matter of Travelers Indem. Co. v Richards-Campbell, 73 AD3d 1076 [2d Dept 2010]; Govt. Emples. Ins. Co. v Shaulskaya, 302 AD2d 522 [2d Dept 2003]; Morris v Allstate Ins. Co., 261 AD2d 457 [2d Dept 1999]; Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [2d Dept 2006]; State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2d Dept 2003]).

Footnote 4:Although these matters are civil as to insurance coverage in perpetration of staged vehicular collisions, it is a New York criminal Class D and E felony pursuant to Alice’s Law effective 11/1/2019: Sections NY CLS Penal § 176.75 and NY CLS Penal § 176.80:

• § 176.75 Staging a motor vehicle accident in the second degree.

• A person is guilty of staging a motor vehicle accident in the second degree when, with intent to commit and in furtherance of a fraudulent insurance act, he or she operates a motor vehicle and intentionally causes a collision involving a motor vehicle.

• Staging a motor vehicle accident in the second degree is a class E felony.