70 A.D.2d 628 | N.Y. App. Div. | 1979
— In a declaratory judgment action, plaintiff and defendants Di Crisci and Tortorici cross-appeal from a judgment of the Supreme Court, Nassau County, entered June 9, 1978, which, inter alia, failed to award counsel fees in this action to said defendants. Tortorici has apparently abandoned his appeal. Judgment modified, on the law, by adding thereto a provision that defendant Di Crisci is entitled to counsel fees in this action. As so modified, judgment affirmed, without costs or disbursements, and said action is remanded to Special Term for a hearing to determine the reasonable value of the counsel fees and for the entry of an appropriate amended judgment. The determination at Special Term that counsel fees are not properly awarded to an insured for his defense of a declaratory judgment action brought by the insurer to determine coverage was error (see Hurney v Mattson, 59 AD2d 934; Penn Aluminum v Aetna Cas. & Sur. Co., 61 AD2d 1119). Damiani, J. P., Cohalan, Hargett and Martuscello, JJ., concur.