Castlepoint Ins. Co. v. Hilmand Realty, LLC

• Decision Date: 09 July 2015
• Docket Number: 15658, 156301/12
• Citation: 130 A.D.3d 475,2015 N.Y. Slip Op. 06014,13 N.Y.S.3d 406
• Parties: CASTLEPOINT INSURANCE COMPANY, Plaintiff–Respondent, v. HILMAND REALTY, LLC, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 475
13 N.Y.S.3d 406
2015 N.Y. Slip Op. 06014

CASTLEPOINT INSURANCE COMPANY, Plaintiff–Respondent
v.
HILMAND REALTY, LLC, et al., Defendants–Appellants.

15658, 156301/12

Supreme Court, Appellate Division, First Department, New York.

July 9, 2015.

13 N.Y.S.3d 406

Cooper & Paroff, P.C., Kew Gardens (Todd R. Baltch of counsel), for Hilmand Realty, LLC and Anayatulla Shariff, appellants.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Jillian Rosen of counsel), for Mujebah A. Abdulla, appellant.

The Law Office of Steven G. Fauth, LLC, New York (Suzanne M. Saia of counsel), for respondent.

GONZALEZ, P.J., FRIEDMAN, RENWICK, MOSKOWITZ, CLARK, JJ.

Opinion

130 A.D.3d 475

Order, Supreme Court, New York County (Anil C. Singh, J.), entered on or about November 14, 2013, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment declaring that it has no duty to defend and indemnify defendants Hilmand Realty, LLC and Anayatulla Shariff in the underlying action, unanimously affirmed, without costs.

The doctrine of judicial estoppel, or estoppel against inconsistent

130 A.D.3d 476

positions, does not bar plaintiff from denying coverage to defendants Hilmand Realty, LLC and Anayatulla Shariff in the underlying personal injury action (see generally Becerril v. City of N.Y. Dept. of Health & Mental Hygiene, 110 A.D.3d 517, 519, 973 N.Y.S.2d 586 [1st Dept.2013], lv. denied 23 N.Y.3d 905, 2014 WL 2609500 [2014] ). Plaintiff did not take factually inconsistent positions in hiring counsel to represent its insureds in vacating their default in the personal injury action, thereby allowing for a continued defense and preservation of the insureds' rights, and moving for a declaration that coverage under the policy was vitiated by untimely notice of claim in the event coverage was triggered. Nor was plaintiff a party to...