NUTMEG INSURANCE COMPANY v. ROSEN (1998)

Appeal from a judgment of the Supreme Court (Williams, J.H.O.), entered August 25, 1997 in Sullivan County, which, inter alia, awarded counsel fees to defendants.

This appeal arises in the context of a declaratory judgment action originally brought to determine whether plaintiff had the obligation to defend and indemnify defendants in an underlying Federal action pursuant to a policy of public entity liability insurance.   That action was commenced prior to this court's determination in Curtis v. Nutmeg Ins. Co., 204 A.D.2d 833, 612 N.Y.S.2d 256, lv. dismissed 84 N.Y.2d 1027, 623 N.Y.S.2d 182, 647 N.E.2d 454, where we found that the underlying Federal action fell within the coverage of the policy and that plaintiff had to pay all reasonable defense costs by an outside attorney (id.).

After that determination was rendered, defendants moved for summary judgment dismissing this declaratory judgment action and for an award of counsel fees.   Due to our determination in Curtis v. Nutmeg Ins. Co. (supra), the motion was granted by Supreme Court by order dated September 18, 1995.   Thereafter, the companion case was referred to a Judicial Hearing Officer for a determination of what would constitute reasonable counsel fees and the parties herein stipulated to have the reasonableness of the fee award here determined by that proceeding.

Concerning the challenge to Supreme Court's reduction of counsel's hourly billing rate, we find that for all of the reasons detailed in our decision in Curtis v. Nutmeg Ins. Co., 256 A.D.2d 758, 681 N.Y.S.2d 620 [decided herewith], there exists no error (see, Ogletree, Deakins, Nash, Smoak & Stewart P.C. v. Albany Steel, 243 A.D.2d 877, 663 N.Y.S.2d 313;  Hinman v. Jay's Vil. Chevrolet, 239 A.D.2d 748, 657 N.Y.S.2d 814;  Shrauger v. Shrauger, 146 A.D.2d 955, 537 N.Y.S.2d 84, appeal dismissed 74 N.Y.2d 844, 546 N.Y.S.2d 561, 545 N.E.2d 875).

As to the denial of defendants' request for an award of counsel fees in connection with the fee application itself, again we find no error.   Since it is undisputed that the award in this case was determined by the hearing in the companion case and that there exists no basis to recover expenses incurred therein as the insureds were affirmatively prosecuting a claim against the insurer for a determination of their rights under the policy of insurance (see, New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 324, 639 N.Y.S.2d 283, 662 N.E.2d 763;  Emery v. Capital Mut. Ins. Co., 151 A.D.2d 854, 856, 542 N.Y.S.2d 829), the absence of a showing that additional work was required in connection with this application does not warrant further review.

ORDERED that the judgment is affirmed, with costs.

PETERS, J.

MIKOLL, J.P., and MERCURE, CREW and CARPINELLO, JJ., concur.