Lancer Indem. Co. v. Peerless Ins. Co.

• Decision Date: 24 August 2022
• Docket Number: 2019–05977,Index No. 604605/16
• Parties: LANCER INDEMNITY COMPANY, appellant, v. PEERLESS INSURANCE COMPANY, respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 768
172 N.Y.S.3d 643 (Mem)

LANCER INDEMNITY COMPANY, appellant,
v.
PEERLESS INSURANCE COMPANY, respondent, et al., defendants.

2019–05977
Index No. 604605/16

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

Argued—May 6, 2022
August 24, 2022

Kennedys CMK, LLP, New York, NY (Max W. Gershweir of counsel), for appellant.

Jaffe & Asher, LLP, New York, NY (Marshall T. Potashner of counsel), for respondent.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to recover defense and indemnification costs, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Leonard D. Steinman, J.), dated March 29, 2019. The judgment, upon a decision of the same court dated February 6, 2019, is in favor of the defendant Peerless Insurance Company and against the plaintiff dismissing the complaint.

172 N.Y.S.3d 644

ORDERED that the judgment is affirmed, with costs.

The plaintiff, Lancer Indemnity Company (hereinafter Lancer), commenced this action against Peerless Insurance Company (hereinafter Peerless), among others, to recover reimbursement for all costs that Lancer spent defending and indemnifying its insured, the defendant TPJ Enterprises, LLC (hereinafter TPJ), as a result of a $500,000 settlement of an underlying negligence action commenced by the defendants Heidi Siciliano and Carl Siciliano (hereinafter together the Sicilianos) against TPJ and the defendant Ace Hardware of Bayshore, Inc. (hereinafter Ace), which was insured by Peerless.

In the underlying negligence action, Lancer provided counsel for TPJ and Peerless provided counsel for Ace. The underlying action was settled following an agreed-upon mediation during which the Sicilianos and the attorneys provided by Lancer and Peerless agreed to the $500,000 settlement amount, and further agreed that Ace and TPJ were each responsible for paying one-half of that total amount. In addition to the attorneys representing TPJ and Ace, individuals representing Lancer and Peerless were also present at the mediation and participated in the settlement of the negligence action.

Lancer moved in the instant action for summary judgment on the complaint, arguing that Peerless was required to reimburse it for the amounts it incurred in defending and...