Citation Numbers: 126 Misc. 2d 188
Judges: Stecher
Filed Date: 2/7/1984
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
This is a motion to stay two actions: Grishkat v Jones, pending in Erie County, and Adeson v Coleco, pending in Rensselaer County. The application is made pursuant to provisions of CPLR 2201 (with respect to the other pending actions, I was informed on the call of the calendar that those actions have been settled and that they are no longer the subject of an underlying declaratory judgment action).
Continental Casualty Company is an excess carrier for Coleco Industries, Inc. The latter manufactures swimming pools and has been made a defendant in the underlying personal injury actions. Continental contends that because of late notice of claim given it by Coleco that it, Continental, has no liability to defend or indemnify in these cases. It seeks to stay the plaintiffs in the underlying actions contending that if the stay is not granted Continental “will be irreparably harmed since it will have to decide, at substantial risk, whether to defend and/or indemnify its insured in the underlying actions.”
Continental cites as authority numerous cases in which stays of the underlying proceedings were granted pending the determination of the declaratory judgment action. In each such case the stay was granted in the underlying action itself. The cases cited by Continental are not cases in which the stay was granted in the declaratory judgment action.
The cases cited by Centinental in suppert ef the preposition that a stay should be granted involve primary carriers. The policy behind stays in such cases is clear — the carrier should not have to commit itself to participate in litigation unless it has an obligation to do so. The cases cited by Continental do not involve excess carriers. The distinction is significant for before the “prejudice” which Continental asserts it would suffer could occur it must be shown that Continental would have an obligation to defend. No such obligation is demonstrated here.
In its moving papers, Continental offers no evidence whatever of its obligation to defend. Quite improperly, the allegation arises for the first time in a reply affirmation served the day before submission of the motion. Annexed to the affidavit is an extract from the excess policy. It appears that only on “the cessation of the obligation of all underlying insurers either to investigate and defend the insured or to indemnify the insured” does the duty or even the right devolve upon Continental to assume those obligations. What is the evidence of “cessation of the obligation of all underlying insurers?” It is the assertion of Continental’s attorney that “CNA has advised that the primary insurer, National Union Fire Insurance Company of Pittsburgh, Pa [American International Insurance Co.], claims that the aggregate limits of the primary policy have been exhausted”. Discretionary relief of the type sought here is not likely to be granted based on hearsay, twice removed. It is alleged by Mr. Saretsky that Continental has told Saretsky (or someone else in his firm) that National Union has told Continental that the
The motion is denied; first for lack of jurisdiction and, second, for demonstration of merits. Leave, is granted to Continental to make its application where it should have been made in the first instance: In Erie and Rensselaer Counties, respectively, in the pending underlying lawsuits.