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Levit v. Allstate Insurance Co.9/15/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
Argued - May 15, 2003
DECISION & ORDER
(Index No. 19767/00)
In an action to compel payment of insurance proceeds arising from the plaintiff's recovery of a judgment in an underlying action entitled Levit v. Chin in the Supreme Court, Kings County, under Index No. 29428/92, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Nassau County (O'Connell, J.), entered April 5, 2002, as denied his motion for summary judgment to recover the principal sum of $6,436,052.80, and granted that branch of the defendant's cross motion which was to limit the plaintiff's recovery to the principal sum of $750,000 plus interest which accrued on that amount while it was held in escrow, and (2) a judgment of the same court dated June 11, 2002, which is in favor of the defendant and against him dismissing the complaint and awarding him the principal sum of $750,000 paid by Allstate into (*2)escrow plus interest accruing thereon while it was deposited in an escrow account.
ORDERED that the appeal from the order is dismissed, without costs or disbursements; and it is further,
ORDERED that the judgment is modified, on the law, by deleting the second decretal paragraph thereof dismissing the complaint; as so modified, the judgment is affirmed, without costs or disbursements, the complaint is reinstated, and the matter is remitted to the Supreme Court, Nassau County, to compute the interest which accrued on the full amount of the judgment in the underlying action entitled Levit v. Chin, in the Supreme Court, Kings County, under Index No. 29428/92 from the date of entry of that judgment until Allstate Insurance Company's deposit of $750,000 into escrow and for entry of an amended judgment awarding the plaintiff interest on the full amount of the judgment for that period of time, and the order is amended accordingly.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 ).
The plaintiff's brother and ward, Alexander Levit, recovered a judgment in the sum of $24,727,616.22 against Alexander Chin in an underlying personal injury action entitled Levit v. Chin, under Kings County Index No. 29428/92. Prior to the entry of judgment in that action, Alexander Chin's insurance carrier Allstate Insurance Company (hereinafter Allstate) offered to settle the underlying action for $500,000, which constituted the policy limits. The offer was rejected. Additional offers to settle the action were made subsequent to entry of judgment in that action.
Approximately two months after the judgment in the underlying action was entered, Allstate forwarded $750,000 to its attorney to be held in escrow "pending an appointment of a guardian" for Alexander Levit. Thereafter Leonid Levit was appointed guardian for his brother Alexander Levit and commenced the instant action to recover the $500,000 policy limits, costs, and interest which accrued on the full amount of the judgment in the underlying action.
Allstate's obligation to pay accrued interest is governed by the terms of its insurance policy which requires it to pay "all costs taxed against the `insured' in any `suit' we defend" and "all interest on the full amount of any judgment that accrues after entry of the judgment in any 'suit' we
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