Paramount Insurance v. Eli Construction General Contractor

245 A.D.2d 38, 665 N.Y.S.2d 857, 1997 N.Y. App. Div. LEXIS 12526

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 1997
• Status: Published

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Martin Evans, J.H.O.), entered November 12, 1996, which, in a declaratory judgment action involving plaintiff insurers’ obligation to defend and indemnify defendant insured in an underlying action brought by codefendant, insofar as appealed from as limited by plaintiffs’ brief, declared plaintiffs to be so obligated after ruling, upon codefendant’s motion for judgment as a matter of law, that plaintiffs failed to make out a prima facie case of the insured’s noncooperation, unanimously affirmed, without costs.

The Judicial Hearing Officer correctly held that plaintiffs’ evidence was insufficient to show that the insured’s attitude, after its cooperation was diligently sought with efforts reasonably calculated to obtain it, was one of “ ‘willful and avowed obstruction’ ” (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168). Plaintiffs were not precluded from introducing the audiotapes of their investigator’s interviews with the insured’s principal. Rather, the J.H.O. properly advised plaintiffs that he would have to listen to the audiotapes themselves before deciding whether the transcripts, which contained many obvious omissions, fairly and accurately reflected conversations contained therein (see, People v Norwood, 142 AD2d 885, lv denied 72 NY2d 960). For some reason, the tapes were never played. Concur—Milonas, J. P., Rubin, Tom, Mazzarelli and Colabella, JJ.