In a September 23, 2011, decision by Justice Kapnick, the court denied plaintiff’s motion to vacate the court’s earlier decision and order granting summary judgment to various defendant-insurers regarding limitations to the allocation period relative to asbestos insurance coverage. Under a proposed settlement agreement between Plaintiff and the sole, remaining defendant-insurer, plaintiff, concerned with the potential collateral-estoppel effect of the prior decision and order, was to move to vacate the order. The defendant-insurer consented to the motion, and the other defendants opposed. Citing First Department and U.S. Supreme Court authority, the court denied plaintiff’s motion despite the court’s “inherent power to vacate its own order in the interests of justice.” The court acknowledged the desirability of settlement whenever possible but on balance found “the amount of time spent in reviewing the parties’ papers and researching and writing its decision, the significance of the issue determined therein and the fact that all the parties do not consent to the relief” to be more compelling.
Foster Wheeler LLC v Affiliated FM Insurance Co., Sup Ct, New York County, September 23, 2011, Kapnick, J., Index No. 600777/01