Morse Diesel International v. Olympic Plumbing & Heating Corp.

22 A.D.3d 356, 801 N.Y.S.2d 898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2005
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Edward H. Lehner, J.), entered September 17, 2004, inter alia, declaring that defendant insurer is required to defend plaintiff insured in an underlying action for personal injuries, unanimously affirmed, with costs. A $2,500 sanction is imposed on plaintiffs attorney for frivolous conduct in prosecuting this appeal, payable to the Lawyers’ Fund for Client Protection. The Clerk of Supreme Court, New York County, is directed to enter judgment accordingly.

There is no merit to plaintiffs argument that, pursuant to the prior order of this Court (299 AD2d 276 [2002], lv dismissed 100 NY2d 577 [2003]), the IAS court should have entered plaintiffs proposed judgment, inter alia, declaring that defendant is required to defend and indemnify plaintiff in the underlying action, rather than defendant’s counter-proposed judgment, inter alia, declaring that defendant is only required to defend plaintiff in the underlying action. The prior order of this Court was clear in declaring that defendant’s obligation was only to defend. Given this clarity, and the lack of any discernible basis for this appeal, we impose a sanction on plaintiff’s attorney (22 NYCRR 130-1.1). Concur—Tom, J.P., Andrias, Sullivan, Gonzalez and Sweeny, JJ.