Ace Prop. & Cas. Ins. Co. v Federal-Mogul Corp.

Ace Prop. & Cas. Ins. Co. v Federal-Mogul Corp. 2008 NY Slip Op 08254 [55 AD3d 479] October 30, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 10, 2008

Ace Property & Casualty Insurance Company et al., Plaintiffs, and Allstate Insurance Company, Appellant,
v
Federal-Mogul Corporation et al., Respondents, and Allianz Global Corporate & Specialty AG et al., Appellants, et al., Defendants.

—[*1] Cuyler Burk, P.C., Parsippany, N.J. (Andrew K. Craig, of the New Jersey bar, admitted pro hac vice, of counsel), for Allstate Insurance Company, appellant.

Margolis Edelstein, Philadelphia, Pa. (Elit R. Felix, II, of the Pennsylvania bar, admitted pro hac vice, of counsel), for Allianz appellants.

Rubin, Fiorella & Friedman, LLP, New York (Bruce M. Friedman of counsel), for American Re-Insurance Company and Executive Risk Indemnity, Inc., appellants.

Colliau Elenius Murphy Carluccio Keener & Morrow, New York (Dean Vigliano of counsel), for Columbia Casualty Company, Continental Casualty Company and The Continental Insurance Company, appellants.

Mendes & Mount, LLP, New York (Robert J. Keane of counsel), for Westport Insurance Corporation and Employers Reinsurance Corporation, appellants.

Rivkin Radler, LLP, Uniondale (Gary D. Centola of counsel), for Fireman's Fund Insurance Company and National Surety Corporation, appellants.

Gilbert Randolph LLP, Washington, D.C. (Stephen A. Weisbrod of counsel), for Federal-Mogul Corporation and Federal-Mogul Products, Inc., respondents.

[*2]Dickstein Shapiro, LLP, New York (Andrew N. Bourne of counsel), for Magnetek, Inc., respondent.

Orders, Supreme Court, New York County (Herman Cahn, J.), entered November 1, 2007, which, in a declaratory judgment action involving plaintiff insurers' coverage obligations for bodily injury claims arising out of alleged exposure to asbestos-containing products that were manufactured, sold or distributed by defendants-respondents' predecessor in interest, insofar as appealed from, granted the motions of defendants Federal-Mogul Corporation and Federal-Mogul Products, Inc. (Federal-Mogul) and Magnetek, Inc. to stay the action to abide an action in New Jersey involving the same subject matter and many of the same parties, unanimously affirmed, without costs.

The insurers fail to show that the first-filed New Jersey action is vexatious, oppressive or was instituted to obtain some unjust advantage, that New York's interests in this dispute predominate over New Jersey's, or other reason for deviating from the generally followed first-in-time rule (see White Light Prods. v On The Scene Prods., 231 AD2d 90, 96-97 [1997]), under which "the court which has first taken jurisdiction is the one in which the matter should be determined and it is a violation of the rules of comity to interfere" (id. at 96 [internal quotation marks and citations omitted]). We have considered the insurers' other arguments and find them unavailing. Concur—Lippman, P.J., Mazzarelli, Williams, Buckley and Renwick, JJ.