Opinion
No. 4682.
March 31, 2011.
Judgment, Supreme Court, New York County (Louis Crespo, Special Ref.) entered February 8, 2010, awarding defendant $1,093,471.15, consisting of $156,851 for reimbursement of the insurance premium, $614,851.80 in attorneys' fees, and interest on the sums, unanimously modified, on the law and facts, to reduce the award by the $156,851 premium payment, the matter remanded for a recalculation of interest, and otherwise affirmed, without costs.
Rosenberg Estis, P.C., New York (Michael E. Feinstein of counsel), for appellant.
Seward Kissel LLP, New York (Bruce G. Paulsen of counsel), for respondent.
Before: Gonzalez, P.J., Friedman, Moskowitz, Freedman and Román, JJ.
Defendant produced no documentary evidence showing that the terrorism premium payment was actually made. Defendant's managing agent's director of risk management was not involved in the payment of the premium and had no direct personal knowledge of whether it was paid. Her testimony that, had the premium not been paid, she would have been informed of that fact or the policy's cancellation, was insufficient to prove that defendant actually paid the terrorism insurance premium ( see Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333, 335-336, lv denied 12 NY3d 713).
The special referee did not abuse his discretion in his award of attorneys' fees, including 50% of the fees in connection with time entries that reflected both legal work in this matter and a related matter for which fees were not recoverable. This split allocation was reasonable and the entries were supported by adequate documentation.