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UNDERWRITERS v. CITY CLUB

3 N.Y.3d 592 (2004)

822 N.E.2d 777

789 N.Y.S.2d 470

U.S. UNDERWRITERS INSURANCE COMPANY, Appellant, v. CITY CLUB HOTEL, LLC, et al., Appellants-Respondents, and MAREK SZPAKOWSKI et al., Respondents.

Court of Appeals of the State of New York.

Decided December 16, 2004.

Attorney(s) appearing for the Case

Bryan Cave LLP, New York City (Mark J. Bunim, Alan Garten and Matthew K. Fleming of counsel), for appellants-respondents.

Miranda & Sokoloff, LLP, Mineola (Steven Verveniotis and Jason B. Gurdus of counsel), for appellant.

Melito & Adolfsen, P.C., New York City (Ignatius John Melito and S. Dwight Stephens of counsel), and Wiley Rein & Fielding LLP, Washington, D.C. (Laura A. Foggan, John C. Yang and David P. Sullivan of counsel), for Complex Insurance Claims Litigation Association, amicus curiae.

Nixon Peabody LLP, New York City (Aidan M. McCormack and Rajika Bhasin of counsel), for CNA Insurance Companies, amicus curiae.

Anderson Kill & Olick, P.C., New York City (Eugene R. Anderson and William G. Passannante of counsel), and Amy Bach, San Francisco, California, for United Policyholders, amicus curiae.

Chief Judge KAYE and Judges CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.

OPINION OF THE COURT

G.B. SMITH, J.

The United States Court of Appeals for the Second Circuit, by two certified questions, has asked this Court to clarify whetheran insured who prevails in an action brought by an insurer seeking a declaratory judgment that it has no duty to defend or indemnify the insured, may recover attorneys' fees expended in defending against the declaratory judgment action regardless of whether...

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