Iannello v. Allstate Insurance

738 N.Y.S.2d 631 | N.Y. App. Div. | 2002

Appeal from a judgment of Supreme Court, Erie County (Cosgrove, J.), entered March 2, 2001, in favor of plaintiff after a nonjury trial.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the award of $2,500 in attorney’s fees and as modified the judgment is affirmed without costs.

Memorandum: Defendant appeals from a judgment entered upon a verdict in favor of plaintiff after a nonjury trial. Plaintiff commenced this action following defendant’s disclaimer of coverage on her claim under a policy of automobile insurance for the theft of her motor vehicle. Although the motor vehicle was recovered, it was a complete loss because of a fire that was set inside the passenger compartment. Defendant disclaimed coverage on the ground that the theft had been staged by plaintiff. We reject defendant’s contention that the verdict, which rests upon Supreme Court’s assessment of credibility, is against the weight of the evidence (see, Riggs v Benning, 290 AD2d 716).

We conclude, however, that the court erred in awarding plaintiff $2,500 in attorney’s fees pursuant to CPLR 8303-a. CPLR 8303-a is not applicable to this action for breach of contract (see, Carver v Apple Rubber Prods. Corp., 163 AD2d 849, 850). We also reject plaintiff’s alternative contention, raised for the first time on appeal, that the award of attorney’s fees was proper because defendant engaged in frivolous conduct within the meaning of 22 NYCRR 130-1.1 (c). We thus modify the judgment by vacating the award of attorney’s fees. Present—Pigott, Jr., P.J., Hayes, Wisner, Hurlbutt and Gorski, JJ.