- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Foddrell v. Utica First Insurance Co.
- Docket
- 2023-05288, 2023-05291
- Filed
- May 27, 2026
- Slip Op
- 2026 NY Slip Op 03294
- Citation
- 2026 NY Slip Op 03294 (N.Y. App. Div. 2d Dep’t 2026)
Background
Thomas Foddrell was injured in a construction-related accident in 2006 and commenced a personal injury action against Joney & Rana Construction Corp. (J & R) and another entity. J & R was insured by Utica First Insurance Company, which retained counsel to represent J & R and hired an investigator to contact Gardeep Singh, J & R’s principal. Singh, however, proved uncooperative: he failed to appear for two court-ordered depositions in fall 2008, and despite multiple attempts by his attorney and Utica’s investigator to reach him — including phone calls, home visits, and a hand-delivered letter warning of coverage consequences — Singh ultimately failed to attend a critical deposition in April 2009.
In April 2009, Utica disclaimed coverage based on Singh’s failure to cooperate. J & R’s attorney was relieved as counsel, and J & R’s answer was eventually stricken for failure to appear for depositions. After an inquest on damages, a judgment was entered in favor of Foddrell in the total sum of $673,422.71. When that judgment went unsatisfied, Foddrell commenced this action in December 2013 pursuant to Insurance Law § 3420(a)(2) to recover the judgment amount directly from Utica. The case proceeded to a nonjury trial, after which the Supreme Court, Queens County entered judgment in favor of Utica and against Foddrell, dismissing the complaint.
Holding
The Appellate Division, Second Department affirmed the judgment in favor of Utica. The court upheld the trial court’s determination that Utica was entitled to disclaim coverage based on J & R’s material breach of the cooperation clause in the insurance policy. The court found that Utica demonstrated that it acted diligently in attempting to secure Singh’s cooperation, making multiple efforts over an extended period to ensure that he appeared for depositions and complied with the defense of the underlying action.
The court rejected Foddrell’s argument that Utica’s prior motion for summary judgment — which had been denied and affirmed by this Court in 2019 — precluded Utica from prevailing at trial. The court explained that the denial of summary judgment is not determinative of the ultimate issue at trial; rather, it simply reflects that triable issues of fact existed at the summary judgment stage. After a full trial on the merits, the Supreme Court properly evaluated the evidence and found that Utica satisfied its burden of demonstrating the insured’s failure to cooperate.
Takeaways
This decision provides a comprehensive illustration of the insured’s duty to cooperate and the insurer’s right to disclaim coverage when that duty is breached. Under New York law, an insurer seeking to disclaim based on noncooperation must demonstrate that it acted diligently in seeking the insured’s cooperation, that the insured’s failure to cooperate was willful rather than inadvertent, and that the failure was material to the defense. Here, Utica’s extensive efforts — including multiple phone calls, investigator visits, and hand-delivered warnings — satisfied the diligence requirement, and Singh’s repeated failures to appear for depositions demonstrated willful noncooperation.
The case also illustrates the procedural distinction between the summary judgment standard and the trial standard. The denial of Utica’s earlier summary judgment motion did not foreclose a judgment in its favor after trial. The summary judgment stage tests only whether triable issues exist; a full trial allows the factfinder to resolve those issues after hearing all the evidence.
For injured plaintiffs pursuing direct actions against insurers under Insurance Law § 3420(a)(2), this case presents a cautionary scenario. Even after obtaining a large judgment against an insured, recovery from the insurer can be defeated if the insured’s failure to cooperate justifies the disclaimer of coverage.
Why It Matters
This decision has important implications for both insurers and injured parties. For insurers, the case validates the practice of meticulously documenting all efforts to secure an insured’s cooperation before issuing a disclaimer. Utica’s step-by-step approach — escalating from phone calls to investigator visits to hand-delivered warning letters — created a strong record of diligence that ultimately supported the trial court’s finding. Insurers should maintain detailed records of every contact attempt, as this evidence is critical if the disclaimer is later challenged.
For plaintiffs’ attorneys in personal injury cases, the decision highlights the risk inherent in Insurance Law § 3420 actions. The plaintiff’s ability to recover depends not only on the merits of the underlying personal injury claim but also on the insured’s compliance with its policy obligations — a factor entirely outside the plaintiff’s control. When an insured fails to cooperate with its own insurer, the injured party may be left with an unsatisfied judgment and no viable path to recovery from the insurance company.