KILADZE v. Infinity Trucking, Inc., et al., Defendants. (2007)

Order, Supreme Court, New York County (Faviola A. Soto, J.), entered June 23, 2006, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion for summary judgment or alternatively to compel the deposition of nonparty Progressive Insurance Company, and denied defendant Country-Wide's cross motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, the cross motion granted to the extent of limiting Country-Wide's liability, if any, to compensatory damages, the demand for punitive damages stricken, and otherwise affirmed, without costs.

Questions of fact preclude summary judgment on the issue of whether Country-Wide is liable for the underlying judgment against its insured.   The record reveals material issues as to when Country-Wide received notice of the claim, and as to whether plaintiffs exercised diligent efforts in locating the insured and notifying Country-Wide of the accident.   An issue of fact is raised as to whether plaintiffs' efforts to notify Country-Wide of the claim was reasonable, especially in light of plaintiffs' difficulty in obtaining relevant information from the insured (see Appel v. Allstate Ins. Co., 20 A.D.3d 367, 368-369, 799 N.Y.S.2d 467 [2005];  Denneny v. Lizzie's Buggies, 306 A.D.2d 89, 761 N.Y.S.2d 171 [2003];  National Grange Mut. Ins. Co. v. Diaz, 111 A.D.2d 700, 701, 490 N.Y.S.2d 516 [1985];  Jenkins v. Burgos, 99 A.D.2d 217, 221, 472 N.Y.S.2d 373 [1984] ).   Since there is a factual issue regarding when Country-Wide received notice of the claim, the effectiveness of its disclaimer cannot be determined at this juncture.   The complaint fails to state a claim for punitive damages (see e.g. Rice v. St. Luke's-Roosevelt Hosp. Ctr., 293 A.D.2d 258, 739 N.Y.S.2d 384 [2002];  Resnick Textile Co. v. Daisy Group, 284 A.D.2d 101, 726 N.Y.S.2d 82 [2001] ).

We have considered the parties' remaining claims for affirmative relief and find them unavailing.