Certain Underwriters at Lloyd's, London v. U.S. Adjustment Corp. , 814 N.Y.S.2d 607 ( 2006 )

Orders, Supreme Court, New York County (Herman Cahn, J.), entered January 27, 2006, which, in an action by an insurer against its claims supervisor, managing general agent and the latter’s successor for breaches of contract and fiduciary duty, denied defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Material issues of fact preclude summary judgment. These factual issues include, inter alia, whether an oral contract existed between plaintiff and defendant claims supervisor, when defendants received the summons and complaint in the underlying action, why there was delay in responding to the underlying action, when counsel was retained in the underlying action, why counsel did not raise the lack of coverage issue in the underlying action, why coverage was not denied in the underlying action, and whether plaintiffs settlement of the underlying action for an amount within the policy limits to avoid excess exposure was a proper mitigation of damages after a default judgment on liability had been entered against its policyholder. We have considered defendants’ arguments and find them unavailing. Concur—Tom, J.P., Mazzarelli, Marlow, Nardelli and Malone, JJ.