FILED: QUEENS COUNTY CLERK 09/02/2015 04:49 PM
`FILED: OUEENS COUNTY CLERK 09m2015 04:49 PM
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`NYSCEF DOC. NO. 60
`NYSCEF DOC. NO. 60
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`INDEX NO. 705199/2014
`INDEX NO~ 705199/2014
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`RaCaIVaD VYSCEF: 09/02/2015
`RECEIVED NYSCEF: 09/02/2015
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`SUPREME COURT OF THE STATE OF NEW YORK
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`COUNTY OF QUEENS
`....................................................................X
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`JOSE LUNA,
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`INDEX No.: 705199/2014
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`Plaintiff(s),
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`ORDER WITH NOTICE
`OF ENTRY
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`-against-
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`TOWER INSURANCE COMPANY OF NEW YORK,
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`Defendant(s).
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`PLEASE TAKE NOTICE, that the within is a true copy of an Order duly entered in
`the office of the Clerk of the within named court on August 24, 2015.
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`Dated: HICKSVILLE, NEW YORK
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`August 31, 2015
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`Wl—«v
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`BERGMAN, BERGMAN, GOLDBERG,
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`FIELDS & LAMONSOFF, LLP
`By: Allen Goldberg
`Attorneys for Plaintiff(s)
`801 S. Broadway
`Hicksville, New York 11801
`(516) 739—2220
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`

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`To:
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`LAW OFFICE OF MAX W. GERSHWEIR
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`Attorney For Defendant
`100 William Street - 7th Floor
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`New York, NY 10038
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`FILED: oceans COUNTY CLERK 08mm IN?“ “0- ”5199/2014
`NY§CEF DOC. NO. 58
`RECEIVED NYSCEF: 08/24/2015
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`SHORT FORM-ORDER
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`NEW YORK SUPREME COURT - QUEENS COUNTY
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`Present: HQN. 'BQBERT L. NAHMAN
`Justice
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`IAS PART 19
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`JOSE LUNA,
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`Index No.: 7051994014
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`Plaintiff;
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`- against -
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`Motion
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`Date:
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`June30, 2015
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`TOWER INSURANCE COMPANY OF NEW
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`Motion
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`YORK,
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`Defendant.
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`Calendar No.:
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`10
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`Seq. No.2 1
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`Upon the'following papers numbered 1 through 43 on plaintiff"s motion for
`summary judgment and defendant’s cross-motion for summary judgment:
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`FILED
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`PAPERS
`AUG 24205 W
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`Notice of Motion/Affinnation-Exhibits..... WW
`Notice of Cross Motio‘n/Affirm.-Exhibits/fle’%owi'anfilgi‘n'Ti".W
`Affirmation in Opposition toCross-Exhibits......................
`Reply Affinnation/Memorandum................................, .......
`Stipulation .............................................................................
`Supplemental Memorandum ................................................
`Correspondence dated June 30, 2015 .....................................
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`- 9
`1
`10 - 20
`21 - 36
`37 - 40
`4 1
`42
`43
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`IT IS ORDERED that plaintiff Jose'Luna’s motion for summary judgment against
`the defendant Tower Insurance Company compelling the defendant Tower Insurance
`Company to satisfy-the judgment entered against their insured, Ray and Frank Liquor
`Store Inc., in the'un’derlying personal injury action is denied; and it is further
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`ORDERED that defendant Tower Insurance Company’s cross motion for
`summary judgment against the plaintiff Jose Luna dismissing the plaintiff‘s action upon
`the grounds that the insured Ray and Frank Liquor Store Inc, breached the insurance
`policy’s cooperation clause, Orin the alternative granting Tower Insurance Company
`partial summary judgment dismissing the allegations in the complaint that the defendant
`Tower Insurance Company is liable for that portion of the judgment that exceeds the
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`

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`policy limits. of $300,000, and to disqualify plaintiff’s counsel from representing plaintiff
`in this action pursuant to Rule 3.7 of the Rules of Professional Conduct is denied.
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`This, is an action brought pursuant to Insurance Law §3420(a)(2) to recover-an
`unsatisfied judgment entered against'the defendant’s insured.
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`On November 19, 2002, plaintiffwas allegedly injured at Ray and Frank Liquor
`Store Inc., while trying to retrieve a box for his sister Gladys Luna, the sole shareholder
`of Ray and Frank Liquor Store Inc. Plaintiff commenced an action to recdver damages
`for his alleged injuries on November 1, 2005. Defendant Tower Insurance Company who
`insured Ray and Frank Liquor Store Inc, was first notified of the accident after the suit
`was filed, some three years after the accident.
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`. Defendant Tower Insurance Company: proceeded to provide a defense to it’s
`insured Ray and Frank Liquor Store Inc, by the law firm of White & McSpedon, but
`issued a letter disclaiming indemnification based upon it"s insured’s alleged breach of the
`policy’s notice of occurrence condition. A separate declaratory judgment action was
`brought by Tower Insurance Company.
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`The personal injury action continued during the pendency of the declaratory
`judgment action and eventually was set down for trial. By correspondence dated
`February 6, 2008, just prior to trial, Ira S. Lipsius, Esq, advised Tower Insurance
`Company that his firm had been retained by Gladys Luna and Ray and Frank Liquor Store
`Inc., to represent their interests in the personal injury action brought by Jose Luna. Ira S.
`Lipsius, .Esq., stated in the letter that
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`“Unless Tower withdraws its declination and accepts full coverage, our
`client will dismiss White & McSpedon as counsel. and this firm will take
`over the defense. In such an event, based on the facts of this case and the
`fact that liability does not appear faVorable to our client, we'will consent to
`a judgment on liability, allow plaintiff to go to inquest solely as to damages,
`and plaintiff will consent to limit his» recovery to insurance assets."
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`Counsel for Tower Insurance Company responded by correspondence dated
`February 25, 2008 to the effect that retention of new counsel would be deemed a violation
`of the insurance policy’s cooperation requirement and that the consent to liability “smacks
`of collusion between the parties which would further imperil the insured’s right under the
`policy.”
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`The parties agree that at the trial ofthe personal injury action held on February 27,
`2008, Ira S'. LipsiUs, Esq., conceded liability and did not contest damages. The verdict
`after the trial was in favor of Jose Luna in the amount of $500,000.
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`Although it is argued in the papers that the plaintiff Jose Luna agreed to limit his
`recoveryito the poliCy limits of $300,000 if Ray and Frank Liquor Store lnc.,. conceded
`liability, the complaint against the defendant Tower Insurance Company demands
`$500,000-plus interest. There is no evidence of an agreement between plaintiff and Ray
`and Frank Liquor Store Inc.
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`Subsequent to the trial, in the decilaratory judgment action, the Appellate Division
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`First Department held that Tower Insurance Company was obligated to indemnify it’s
`insured Ray and Frank. Liquor Store.
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`Thereafter, plaintiff commenced this action against defendant Tower Insurance
`Company to recover thejudgment in the underlying action. The complaint alleges that
`defendant Tower Insurance Company is obligated to pay pre-judgment and post-judgment
`interest on $500,000.
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`Defendant Tower Insurance Company asserts three affirmative defenSes in its
`answer: (I) that defendant is not bound by the judgment in the underlying action due to
`lack of privity with Frank and Ray Liquor Store Inc., resulting from the .insured’s refusal
`to permit White & McSpedon to defend‘the‘ insured at trial; (2) that plaintiff cannot
`recover the judgment against defendant since the insured colluded with plaintiff in
`advance of and during the trial; and (3) that the insured breached the insurance policy’s
`cooperation clause by refusing the defense at trial and otherwise failing to assist in the
`defense of that action.
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`No discovery has taken place in this action.
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`“A valid and enforceable judgment is a condition precedent to maintaining an
`action pursuant to Insurance Law §3420(a)(2),” Hernandez v American Transit, 2 AD3d
`584, 585 (2"d Dept., 2003), citations omitted. A judgment entered through fraud,
`misrepresentation, or other misconduct practiced on the court is a nullity and is subject to
`collateral attack, 1d.
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`The evidence submitted on the. cross motion is sufficient to raise a triable issue of
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`fact as to whether plaintiff has a valid judgment.
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`/'
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`Dated: August 21, 2015
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`FILED
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`AUG 2 4 2015
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`COUNTY CLERK
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`"'Nahman, J.S.C.
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`Robert
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