Pro's Choice Beauty Care, Inc. v. Great N. Ins. Co., 2018–10274
| Court | New York Supreme Court Appellate Division |
| Citation | 140 N.Y.S.3d 544,190 A.D.3d 868 |
| Docket Number | Index No. 608150/16,2018–10274 |
| Parties | PRO'S CHOICE BEAUTY CARE, INC., appellant-respondent, v. GREAT NORTHERN INSURANCE COMPANY, respondent-appellant. |
| Decision Date | 20 January 2021 |
190 A.D.3d 868
140 N.Y.S.3d 544
PRO'S CHOICE BEAUTY CARE, INC., appellant-respondent,
v.
GREAT NORTHERN INSURANCE COMPANY, respondent-appellant.
2018–10274
Index No. 608150/16
Supreme Court, Appellate Division, Second Department, New York.
Argued—November 9, 2020
January 20, 2021
Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., New York, N.Y. (Anthony J. Viola, Andre K. Cizmarik, and Kara M. Cormier of counsel), for appellant-respondent.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Katherine E. Tammaro of counsel), for respondent-appellant.
LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to recover damages for breach of contract and for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying action entitled Bumble and Bumble, LLC v. Pro's Choice Beauty Care, Inc., commenced in the United States District Court for the Southern District of New York under Docket No. 14–CV–6911, the plaintiff appeals, and the defendant cross-appeals, from an order of the Supreme Court, Suffolk County (Elizabeth H. Emerson, J.), dated August 3, 2018. The order, insofar as appealed from, denied that branch of the plaintiff's cross motion which was summary judgment on the issue of the defendant's liability for defense costs. The order, insofar as cross-appealed from, denied the defendant's motion, in effect, for summary judgment declaring that it is not obligated to defend or indemnify the plaintiff in the underlying action.
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that the order is reversed insofar as cross-appealed from, on the law, the defendant's motion, in effect, for summary judgment declaring that it is not obligated to defend or indemnify the plaintiff in the underlying action is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that the defendant is not obligated to defend or indemnify the plaintiff in the underlying action entitled Bumble and Bumble, LLC v. Pro's Choice Beauty Care, Inc., commenced in the United States District Court for the Southern District of New York under Index No. 14–CV–6911; and it is further,
ORDERED one bill of costs is awarded to the defendant.
The plaintiff purchased commercial general liability insurance from the defendant (hereinafter the policy). Nonparty Bumble and Bumble, LLC, commenced an action against, among others, the plaintiff in the United States District Court for the Southern District of New York to recover damages and for injunctive relief based on, inter alia, trademark infringement (hereinafter the underlying action). The plaintiff tendered notice of the underlying action to the defendant, and the defendant disclaimed
coverage. The plaintiff ultimately settled the underlying action.
The plaintiff commenced this action against the defendant to recover damages for breach of contract and for certain declaratory relief. The defendant moved for summary judgment, in effect, declaring that it is not obligated to defend or indemnify the plaintiff in the underlying action, and the plaintiff cross-moved, inter alia, for summary judgment on the issue of the defendant's liability for defense costs. The Supreme Court denied the motion and the cross motion. The plaintiff appeals and the defendant cross-appeals.
"A duty to defend is triggered by the allegations contained in the underlying complaint" ( BP A.C. Corp. v. One Beacon Ins. Group, 8 N.Y.3d 708, 714, 840 N.Y.S.2d 302, 871 N.E.2d 1128 ; see One Reason Rd., LLC v. Seneca Ins. Co., Inc., 163 A.D.3d...
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...is covered, the insurer has the burden of showing that an exclusion applies. Pro's Choice Beauty Care, Inc. v. Great Northern Ins. Co., 140 N.Y.S.3d 544, 546 (2d Dep't 2021). If coverage is not barred by an exclusion, then the insured bears the burden of proving damages. See Alpha Auto Brok......
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Durant v. State, 2018–08464
...action that gives rise to the reasonable possibility of recovery under the policy" ( Pro's Choice Beauty Care, Inc. v Great N. Ins. Co., 190 A.D.3d 868, 870, 140 N.Y.S.3d 544 ). An insurer may be relieved of its duty to defend if it demonstrates, as a matter of law, that there is no possibl......
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Deer Mountain Inn LLC v. Union Ins. Co., 1:20-cv-0984 (BKS/DJS)
...is covered, the insurer has the burden of showing that an exclusion applies. Pro's Choice Beauty Care, Inc. v. Great Northern Ins. Co., 140 N.Y.S.3d 544, 546 (2d Dep't 2021). If coverage is not barred by an exclusion, then the insured bears the burden of proving damages. See Alpha Auto Brok......
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Durant v. State, 2018–08464
...action that gives rise to the reasonable possibility of recovery under the policy" ( Pro's Choice Beauty Care, Inc. v Great N. Ins. Co., 190 A.D.3d 868, 870, 140 N.Y.S.3d 544 ). An insurer may be relieved of its duty to defend if it demonstrates, as a matter of law, that there is no possibl......