Opinion
April 16, 1998
Appeal from the Supreme Court, New York County (Lewis Friedman, J.).
The Special Referee's finding that defendant had received the January 1988 correspondence regarding the underlying action was properly confirmed as "substantially supported by the record" ( Barr v. Barr, 232 A.D.2d 316). Since defendant does not dispute that such a finding would render its disclaimer of coverage to its insured belated and ineffective, the court properly granted plaintiff summary judgment on its first cause of action insofar as it sought to recover defendant's insured's adjudicated apportioned liability. However, it was error to award plaintiff a portion of its attorneys' fees and disbursements incurred in the underlying action, since the statute under which it sues does not provide for such an award, and no legal costs were incurred by plaintiff in defense of defendant's insured, against whom plaintiff's insured had entered a default judgment on a cross claim. There is no merit to plaintiff's argument that its litigation costs would have been significantly less had defendant retained counsel to defend its insured, and that the relief awarded, fees incurred in the underlying action, was not that requested, namely the fees incurred in the instant action.
Concur — Milonas, J.P., Nardelli, Wallach and Andrias, JJ.