Atlantic Specialty Ins. Co. v Sugar Bay Club & Resort Corp.

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Atlantic Specialty Ins. Co. v Sugar Bay Club & Resort Corp. 2023 NY Slip Op 33206(U) September 8, 2023 Supreme Court, New York County Docket Number: Index No. 653684/2020 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 653684/2020 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/14/2023 SUPREME COURT OF THE STATE OF. NEW.YORK PART 41 COUNTY OF NEW YORK: ---- .-------- -----~- ---------- -------x ATLANTIC SPECIALTY INSURANCE COMPANY, Plaintiff Index No. 6536ff4/2020 - against - DECISION AND ORDER SUGAR BAY CLUB AND RESORT CORP., JOSEPH . MOINIAN, .MOIN MOINIAN {a/k/a DAVID MOINIAN), and MORRIS MOINIAN, Defendants LUCY BILLINGS, J.S.C.: In ari order .dated October 17, 2022, the court granted 's motion for plainti a preliminary injunction to the extent of ' ordering defendants, jointly and individually, to depos with plaintiff ca~h or other colla~eral security with a value of at least $780,805.47. this•amount C.P.L.R. §§ 6301, 6312(a). The court found reasonable value of losses plaintiff might sustain from its execution of bonds on defendant Sugar Bay Club and Resort's behalf~ Colonial Sur. Co. v. Eastland Constr., 77 A.D.3d 581, 582 (1st Dap't 2010); BIB Constr. Co. v. Fireman's Ins. Co .. of Newark, Dep't .1995). These N.J., 214 A.D.2d 521, 523 (1st ses comprised nonparty Carolyn Esperson's claim of $712,595.37 against the bond, which plaintiff had paid; her•further claim against Sugar Bay Club and Resort for . . . attorneys' fees of $26,.540.50; and pl~intiff's claimed attorneys' .atlspecialty923 [* 1] 1 2 of 5 INDEX NO. 653684/2020 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/14/2023 fees of $41,669.60 incurred in this action. Plaintiff now moves for summary judgment for that total $780,805.47. C.P.L.R. § 3212(b). Defendants do not oppose a judgment for $712,595.37 on plaintiff's third claim, since plaintiff has paid that amount. C.P.L.R. § 3212(b) and (e). Plaintiff has not established, however, that it is entitled to the attorneys' fees Esperson claims against Sugar Bay Club and Resort of $26,540.50, since the court in her underlying action against Sugar Bay Club and Resort has not awarded her any fees, nor has plaintiff established the attorneys' in this action. fees it has incurred To protect plaintiff's potential recovery of those two amounts, the court already has ordered defendants to provide security for those amounts, albeit plaintiff's attorneys' fees incurred in this action now may have increased. In any event, plaintiff seeks summary judgment only on defendants' liability for plaintiff's attorneys' fees and expenses, its fourth and fifth claims, and the parties stipulate to the hearing and determination by a referee of the reasonable amount of fees and expenses plaintiff has incurred in this action. 3212(b) and (e), C.P.L.R. §§ 4317. Consequently, the court grants plaintiff's motion for summary judgment for $712,595.37 on its third claim. 3212(b) and (e). C.P.L.R. § The court also grants plaintiff's motion for summary judgment on defendants' liability on its fourth and fifth atlspecialty923 [* 2] 2 3 of 5 INDEX NO. 653684/2020 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/14/2023 claims for its attorneys' fees and expenses. Id. The court refers the issue of the amount of reasonable attorneys' fees and expenses to be awarded to plaintiff to the Special Referee Clerk for placement at the earliest possible date on the calendar of the Special Referees' Part, which at the initial appearance shall assign this issue to an available Judicial Hearing Officer (JHO) or Special Referee to hear and determine. C.P.L.R. § 4317. Within 15 days after entry of this order, plaintiff shall se~ve the order on defendants and shall submit to the Special Referee Clerk the Information Sheet access at the "References" link on the court's website, completed with all the information called for. The Special Referee Clerk then shall advise the parties of the date to appear on the Special Referees' Part calendar. The parties shall appear on that date with all witnesses and other evidence the parties seek to introduce and be ready to proceed with the assessment of attorneys' fees and expenses. Unless the assigned JHO or Special Referee orders otherwise, the assessment shall proceed from day to day. Plaintiff shall be entitled to a judgment for reasonable attorneys' fees and expenses awarded. C.P.L.R. § 3212(b) and {e). The court grants plaintiff's motion to the extent it seeks a permanent injunction ordering defendants, jointly and individually, to deposit with plaintiff cash or other collateral atlspecialty923 [* 3] 3 4 of 5 INDEX NO. 653684/2020 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 09/14/2023 security with a value of at least $68,210.10, the sum of Esperson's claim against Sugar Bay Club and Resort for attorneys' fees of $26,540.50 and plaintiff's previously claimed attorneys' fees of $41,669.60 incurred in this action. The latter amount secures plaintiff's potential recovery to be determined a hearing. the Plaintiff claims this amount now has increased to $70,128.09, but plaintiff has not supported any of its fees or expenses with admissible evidence. Plaintiff shall return to defendants any collateral that exceeds the losses plaintiff is determined to have actually incurred. The court otherwise denies plaintiff's motion. If plaintiff ultimately pays any attorneys' fees awarded to Esperson against Sugar Bay Club and Resort, plaintiff may move again for summary judgment for that amount. The court vacates its preliminary injunction dated October 17, 2022, including the $35,000.00 undertaking the court required plaintiff to deposit with the Clerk 0£ the Court. 6312(b). C.P.L.R. § Upon plaintiff's presentation of this order with notice of entry, the Clerk of the Court shall return its deposit of $35,000.00. DATED: September 8, 2023 LUCY BILLINGS, J.S.C. LUCY .~ILUNGS J.S.C atlspecialty923 [* 4] 4 5 of 5

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