Friedlander Org., LLC v. Liberty Ins. Underwriters, Inc. , 16 N.Y.S.3d 467 ( 2015 )

Friedlander Org., LLC v Liberty Ins. Underwriters, Inc. (2015 NY Slip Op 06778)

Friedlander Org., LLC v Liberty Ins. Underwriters, Inc.

2015 NY Slip Op 06778

Decided on September 16, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

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

Decided on September 16, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
CHERYL E. CHAMBERS
JOSEPH J. MALTESE, JJ.

2014-03029
(Index Nos. 13276/11, 614/12)

[*1]Friedlander Organization, LLC, respondent,

v

Liberty Insurance Underwriters, Inc., appellant. (Action No. 1)



Liberty Insurance Underwriters, Inc., appellant, vAkin Ayorinde, et al., defendants, Friedlander Organization, LLC, respondent. (Action No. 2)

Steinberg & Cavaliere, LLP, White Plains, N.Y. (Kevin F. Cavaliere and Ronald W. Weiner of counsel), for appellant.

Steven Cohen, P.C., Carle Place, N.Y. (Susan E. Dantzig of counsel), for respondent.

DECISION & ORDER

In an action pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against parties insured by Liberty Insurance Underwriters, Inc. (Action No. 1), and a related action, inter alia, to rescind a professional liability insurance policy (Action No. 2), Liberty Insurance Underwriters, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated February 6, 2014, as denied its motion for summary judgment dismissing the complaint in Action No. 1 and on its first three causes of action in Action No. 2, and granted the cross motion of the Friedlander Organization, LLC, to compel it to produce an additional witness for a deposition.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The appellant, Liberty Insurance Underwriters, Inc. (hereinafter Liberty), failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint in Action No. 1 and on its first three causes of action in Action No. 2. Accordingly, its motion for that relief was properly denied regardless of the sufficiency of the respondent's opposition papers (see Winegrad v New York Univ. Med. Ctr ., 64 NY2d 851, 853).

Contrary to Liberty's contention, the Supreme Court properly granted the respondent's cross motion to compel it to produce an additional witness for a deposition.

MASTRO, J.P., BALKIN, CHAMBERS and MALTESE, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court