Jerusalem Ave. Taxpayer, LLC v. Liberty Mut. Ins. Co.

Jerusalem Ave. Taxpayer, LLC v Liberty Mut. Ins. Co. (2019 NY Slip Op 06691) Jerusalem Ave. Taxpayer, LLC v Liberty Mut. Ins. Co. 2019 NY Slip Op 06691 Decided on September 24, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on September 24, 2019 Acosta, P.J., Manzanet-Daniels, Mazzarelli, Webber, Moulton, JJ. 9895 159842/13 [*1]Jerusalem Avenue Taxpayer, LLC, Plaintiff-Respondent, CastlePoint Insurance Company, Plaintiff, v Liberty Mutual Insurance Company, Defendant-Appellant, Best Yet Market, Inc., et al., Defendants. Jaffe & Asher, LLP, New York (Marshall T. Potashner of counsel), for appellant. Kennedys CMK, LLP, New York (Max W. Gershweir of counsel), for respondent. Order, Supreme Court, New York County (Carol R. Edmead, J.), entered December 28, 2018, which, to the extent appealed from, denied defendant Liberty Mutual Insurance Company's (defendant) cross motion for an order, pursuant to CPLR 5015(d) and 5523, directing plaintiff Jerusalem Avenue Taxpayer, LLC (plaintiff) to pay restitution of amounts that defendant paid to settle an underlying action against it, or, alternatively, for leave to amend its answer to assert a claim for restitution, unanimously affirmed, with costs. The motion court providently exercised its discretion in denying defendant's request for the equitable remedy of restitution (see generally Gaisi v Gaisi, 108 AD3d 687 [2d Dept 2013]; Restatement [Third] of Restitution and Unjust Enrichment § 1, Comment a). Even assuming plaintiff was not insured under the insurance policy issued by defendant, it was plaintiff's insurer that received the benefit of defendant's contribution to the settlement of the underlying action, and defendant's right to recoup its settlement contribution from plaintiff's insurer is governed by an agreement between defendant and plaintiff's insurer. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: SEPTEMBER 24, 2019 CLERK