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Friedlander Org., LLC v Liberty Ins. Underwriters, Inc., 2015 NY Slip Op 06778 [131 AD3d 1005]

September 16, 2015

Appellate Division, Second Department

[*1]

Friedlander Organization, LLC, Respondent,

v

Liberty Insurance Underwriters, Inc., Appellant. (Action No. 1.) Liberty Insurance Underwriters, Inc., Appellant, v Akin Ayorinde et al., Defendants, and Friedlander Organization, LLC, Respondent. (Action No. 2.)

Steinberg & Cavaliere, LLP, White Plains, N.Y. (Kevin F. Cavaliere and Ronald W. Weiner of counsel), for appellant.

Steven Cohen, P.C., Carle Place, N.Y. (Susan E. Dantzig of counsel), for respondent.

In an action pursuant to Insurance Law § 3420 (a) (2) to recover the amount of an unsatisfied judgment against parties insured by Liberty Insurance Underwriters, Inc. (Action No. 1), and a related action, inter alia, to rescind a professional liability insurance policy (Action No. 2), Liberty Insurance Underwriters, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated February 6, 2014, as denied its motion for summary judgment dismissing the complaint in Action No. 1 and on its first three causes of action in Action No. 2, and granted the cross motion of Friedlander Organization, LLC, to compel it to produce an additional witness for a deposition.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellant, Liberty Insurance Underwriters, Inc. (hereinafter Liberty), failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint in Action No. 1 and on its first three causes of action in Action No. 2. Accordingly, its motion for that relief was properly denied regardless of the sufficiency of the respondent’s opposition papers ( see Winegrad v New York Univ. Med. Ctr ., 64 NY2d 851, 853 [1985]).

Contrary to Liberty’s contention, the Supreme Court properly granted the respondent’s cross motion to compel it to produce an additional witness for a deposition. Mastro, J.P., Balkin, Chambers and Maltese, JJ., concur..