KUMAR v. AMERICAN TRANSIT INSURANCE COMPANY

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

Reena KUMAR and Pradeep Kumar, as Assignees of Jeffrey A. Tisack, Plaintiffs-Respondents, v. AMERICAN TRANSIT INSURANCE COMPANY, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  SMITH, J.P., FAHEY, GREEN, AND PINE, JJ. Poklemba & Hobbs, LLC, Saratoga Springs (John J. Poklemba of Counsel), for Defendant-Appellant. Garvey & Garvey, Buffalo (Matthew J. Garvey of Counsel), for Plaintiffs-Respondents.

Plaintiffs commenced this action seeking damages incurred as the result of alleged acts of bad faith by defendant, the insurer of plaintiffs' assignor, in refusing to settle the underlying personal injury action.   Defendant appeals from an order granting plaintiffs' motion for summary judgment on the complaint.   Contrary to defendant's contention, an action seeking damages for an insurer's bad faith refusal to settle an underlying action may be resolved by a motion for summary judgment (see e.g. Lavaud v. Country-Wide Ins. Co., 29 A.D.3d 745, 815 N.Y.S.2d 680;  Little Princess Express Cab Corp. v. American Tr. Ins. Co., 12 A.D.3d 266, 785 N.Y.S.2d 430;   Levit v. Allstate Ins. Co., 9 A.D.3d 417, 779 N.Y.S.2d 790, lv. dismissed in part and denied in part 3 N.Y.3d 732, 786 N.Y.S.2d 805, 820 N.E.2d 284).   We agree with defendant, however, that Supreme Court erred in granting plaintiffs' motion.   To prevail in such an action, a plaintiff must establish that the insured “ ‘lost an actual opportunity to settle the ․ [action]’ ․ at a time when all serious doubts about [his or her] liability were removed” (Pavia v. State Farm Mut. Auto. Ins. Co., 82 N.Y.2d 445, 454, 605 N.Y.S.2d 208, 626 N.E.2d 24, rearg. denied 83 N.Y.2d 779, 611 N.Y.S.2d 126, 633 N.E.2d 480;  see generally St. Paul Fire & Mar. Ins. Co. v. United States Fid. & Guar. Co., 43 N.Y.2d 977, 978, 404 N.Y.S.2d 552, 375 N.E.2d 733), and that “defendant insurer engaged in a pattern of behavior evincing a conscious or knowing indifference to the probability that an insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted” (Pavia, 82 N.Y.2d at 453-454, 605 N.Y.S.2d 208, 626 N.E.2d 24).   Here, we agree with defendant that plaintiffs failed to meet their initial burden on their motion of establishing their entitlement to judgment as a matter of law (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718) and, consequently, we do not consider the sufficiency of defendant's opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   We therefore reverse the order and deny plaintiffs' motion.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.

MEMORANDUM: