Pandarakalam v. Liberty Mut. Ins. Co.
| Decision Date | 30 March 2016 |
| Docket Number | 2014-05901, Index No. 52498/12. |
| Citation | 137 A.D.3d 1234,2016 N.Y. Slip Op. 02339,29 N.Y.S.3d 413 |
| Parties | Cherian PANDARAKALAM, respondent, v. LIBERTY MUTUAL INSURANCE COMPANY, appellant. |
| Court | New York Supreme Court — Appellate Division |
137 A.D.3d 1234
29 N.Y.S.3d 413
2016 N.Y. Slip Op. 02339
Cherian PANDARAKALAM, respondent,
v.
LIBERTY MUTUAL INSURANCE COMPANY, appellant.
2014-05901, Index No. 52498/12.
Supreme Court, Appellate Division, Second Department, New York.
March 30, 2016.
Feldman, Rudy, Kirby & Farquharson, P.C., Jericho, N.Y. (Brian R. Rudy of counsel), for appellant.
Caruso Glynn, LLC, Fresh Meadows, N.Y. (Lawrence C. Glynn of counsel), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, and BETSY BARROS, JJ.
In an action, inter alia, to recover damages for breach of an insurance contract, the defendant appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County (Walker, J.), entered March 27, 2014, as denied those branches of its cross motion which were for summary judgment dismissing the causes of action to recover damages resulting from debris removal and consequential damages, and the plaintiff's claim for attorneys' fees.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's cross motion which was for summary judgment dismissing the plaintiff's claim for attorneys' fees, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs.
The plaintiff's house was damaged by a fire on April 7, 2010. The house was covered by a homeowners' insurance policy (hereinafter the policy) issued by the defendant, Liberty Mutual Insurance Company.
Following the plaintiff's filing of an insurance claim with the defendant, the defendant and the plaintiff were unable to agree on the amount of loss sustained by the plaintiff or the cost to repair the plaintiff's home. As a result, by letter dated July 6, 2010, the defendant invoked the appraisal provision of the insurance policy. The parties were subsequently unable to agree on an umpire (see Insurance Law § 3404 ) to resolve their
dispute, and the matter was not submitted to an umpire for determination of the amount of the plaintiff's loss until more than one year later. In April 2011, the defendant advised the plaintiff that it would no longer pay for any additional living expenses he incurred while his home was being repaired because the policy provided for the payment of such expenses for a maximum of 12 months.
The umpire ultimately determined the plaintiff's award on September 8, 2011. The defendant tendered additional payments to the plaintiff amounting to the full actual cash value of the umpire's award just over one month later.
The plaintiff thereafter commenced this action against the defendant alleging, inter alia, that the defendant breached the insurance policy by acting in bad faith in its handling of the plaintiff's claim. The complaint sought, among other things, damages for debris removal that the plaintiff incurred during the rebuilding of his house, as well as consequential damages for the plaintiff's additional living expenses. Following discovery, the...
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