U.S. Underwriters Insurance v. Mesiftah Eitz Chaim of Bobov

—In an action for a judgment declaring that the plaintiff U.S. Underwriters Insurance Company is not obligated to defend or indemnify the respondent Mesiftah Eitz Chaim of Bobov with respect to an underlying action to recover damages for personal injuries commenced against the respondent by the defendants Sholomo Smilovich and Doris Smilovich, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Hurowitz, J.), dated May 21, 1993, as granted that branch of the respondent’s motion which was for an award of costs and attorney’s fees incurred in defending the instant declaratory judgment action and directed a hearing to determine the amount of attorney’s fees. Ordered that the order is affirmed insofar as appealed from, with costs. After commencing this declaratory judgment action to avoid its obligation to defend the respondent insured in an underlying personal injury action, the plaintiff insurer abandoned prosecution of this action, admitted coverage, and settled the underlying action on behalf of the respondent. The plaintiff does not dispute that it was required to defend and indemnify the respondent in the underlying action. Because the respondent was cast in a defensive position as the result of the plaintiff’s attempt to free itself from the obligations of its policy, the Supreme Court properly concluded that the respondent is entitled to an award of reasonable costs and attorney’s fees incurred in defending this declaratory judgment action [219] (see, Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21; U.S. Liab. Ins. Co. v Staten Is. Hosp., 162 AD2d 445, 447). Copertino, J. P., Pizzuto, Santucci and Florio, JJ., concur.