By Manzanet-Daniels, J.P., Gische, Webber, Moulton, JJ. 10124-10124A. McGraw-Hill Education, Inc., Plaintiff-Appellant-res, v. Illinois National Insurance Company, et al., Defendants-Respondents-ap — Dykema Gossett PLLC, Washington, DC (Lewis K. Loss of the bar of the District of Columbia, admitted pro hac vice, of counsel), for appellant-res — Carlton Fields, P.A., New York (Robert Novack of counsel), for respondents-ap — Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered on or about January 10, 2019, which denied plaintiff’s motion for summary judgment declaring that defendants are obligated to provide insurance coverage in the underlying copyright actions, unanimously reversed, on the law, with costs, and the motion granted. Order, same court and Justice, entered on or about January 17, 2019, which denied defendants’ motion for summary judgment declaring in their favor, unanimously affirmed, with costs. The Clerk is directed to enter judgment declaring that defendants are obligated to provide insurance coverage in the underlying copyright actions. Exclusions I and D of the insurance policies, which preclude coverage for claims arising out of a contract, do not apply here. For a claim to “arise” out of a contract, the existence of the contract must be the “but for” cause of the loss (see Mount Vernon Fire Ins. Co. v. Creative Hous., 88 NY2d 347, 352 [1996]). Although the parties had license agreements, the licensors could have brought claims based on copyright regardless of whether a contract had ever been entered into; thus, the contract is not the but for cause of the loss (see Bridge Metal Indus., LLC v. Travelers Indem. Co., 559 Fed Appx 15, 19-20 [2d Cir 2014]). Exclusion G, which precludes coverage for claims arising, as relevant here, out of intentional violation of law or gaining profit or advantage to which the insured is not legally entitled, does not apply. The relevant policy provision with regard to infringement of copyright is in the definition of damages, which bars coverage only where it is “judicially determined” that the violation was intentional and was carried out by a senior vice president, or someone more senior, of plaintiff. This specific clause controls over the general provision in exclusion G relating to intentional violations of law (see e.g. Bank of Tokyo-Mitsubishi, Ltd., N.Y. Branch v. Kvaerner a.s., 243 AD2d 1, 8 [1st Dept 1998] ["(I)f there is an inconsistency between a general provision and a specific provision of a contract, the specific provision controls"]). Further, there has been no such judicial determination in the underlying actions. Defendants cannot litigate that issue in the coverage action (see generally National Union Fire Ins. Co. of Pittsburgh, Pa. v. Xerox Corp., 6 Misc 3d 763, 776 [Sup Ct, NY County 2004], affd 25 AD3d 309 [1st Dept 2006], lv dismissed 7 NY3d 886 [2006]). Had defendants desired the right to litigate that issue here, they could have provided for it through appropriate language in the exclusion (see e.g. Darwin Natl. Assur. Co. v. Luzerne County Transp. Auth., 2016 WL 1242283, *4, 2016 US Dist LEXIS 41733, *13-14 [MD Pa., Mar. 30, 2016]). Nor does the fortuity doctrine apply to bar coverage. The fortuity doctrine has been applied to insurance policies under which coverage is triggered by an “accident” or “occurrence” (see Consolidated Edison Co. of N.Y. v. Allstate Ins. Co., 98 NY2d 208, 220 [2002]; see also Chase Manhattan Bank v. New Hampshire Ins. Co., 193 Misc 2d 580, 592 [Sup Ct, NY County 2002]). One of the express purposes of the policies in this case, however, was to provide coverage for a defined risk: “claims arising out of… infringement of common law or statutory copyright.” Thus, invoking the fortuity doctrine would render that portion of the policy illusory. Although the issue is rendered moot by our ruling on the exclusions, we note that defendants’ letters were effective to reserve their right to recoupment (see generally United Specialty Ins. Co. v. CDC Hous., Inc., 233 F Supp 3d 408, 414 [SD NY 2017]). This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Mazzarelli, J.P., Kapnick, Gesmer, Moulton, JJ. 10453N-10453NB. In re Kelly G., pet-ap, v. Circe H., res-res — Warshaw Burstein, LLP, New York (Eric Wrubel of counsel), for ap — Cohen Rabin Stine Schumann LLP, New York (Bonnie E. Rabin of counsel), for res — Order, Supreme Court, New York County (Frank P. Nervo, J.), entered January 22, 2019, which, upon remand from this Court, (1) set forth criteria to establish equitable estoppel, and (2) granted respondent’s cross motion for counsel fees to the extent of awarding respondent $200,000 in interim counsel fees without prejudice to further application, and reserving decision on respondent’s application for outstanding counsel fees pending a hearing framed on the issue at a date to be determined, unanimously affirmed, without costs. Orders, same court and Justice, entered January 3, 2019, which, to the extent appealed from, directed petitioner to pay 100 percent of the costs of an attorney for the child and a neutral forensic evaluator, unanimously affirmed, without costs. This case raises an issue of first impression for this Court, that is, whether in a proceeding to establish standing to assert parental rights in seeking visitation and custody under Domestic Relations Law §70 (see generally Matter of Brooke S.B. v. Elizabeth A.C.C., 28 NY3d 1 [2016]), the court has discretion to direct the “more monied” party to pay the other party’s counsel and expert fees under Domestic Relations Law §237 before that party has been adjudicated a parent. We find that it does. Domestic Relations Law §237(b), which is a statutory exception to the general rule that each party is responsible for her own legal fees (see Hooper Assoc., Ltd. v. AGS Computers, 74 NY2d 487, 491 [1989]), provides, in relevant part, that “upon any application… concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court’s discretion, justice requires… .” This statute, like Domestic Relations Law §70, does not define the term “parent.” In holding that Domestic Relations Law §70 “permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation” (Brooke S.B., 28 NY3d at 27), the Court of Appeals focused on our courts’ historic exercise of their inherent powers of equity to act in the best interests of children (id. at 23; see also Debra H. v. Janice R., 14 NY3d 576, 609 [2010][Ciparick, J., concurring], cert denied 562 US 1136 [2011]; N.Y. Const. art. VI, §7[a]). The Court of Appeals also stressed that it “has gone to great lengths to escape the inequitable results dictated by a needlessly narrow interpretation of the term ‘parent’” (Brooke S.B. at 24). Consonant with that approach, we conclude that highly inequitable results would flow in this case from permitting the party with far greater resources to seek custody as against the child’s primary parent without allowing that parent to seek counsel fees. Without determining that she is a parent for purposes beyond the application of Domestic Relations Law §237(b), we find that Domestic Relations Law §237(b) must be read to permit the court to direct petitioner to pay respondent’s counsel fees as necessary “to enable [her] to… defend the application… as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.” Here, the motion court appropriately considered the income and resources of each party and the equities of this case and properly exercised its discretion in granting respondent’s cross motion for interim counsel fees to the extent of awarding her $200,000 and holding the balance of her requests for additional fees and past counsel fees in abeyance. Accordingly, we affirm the interim counsel fee award. Petitioner further contends that the court’s articulation of 11 estoppel factors to be considered at trial creates a heightened burden for her to meet by clear and convincing evidence when the appropriate analysis has already been well-established by precedent. We disagree. As a preliminary matter, contrary to respondent’s contention, we find that this portion of the order is appealable. Although there was no formal motion with respect to the court fashioning an equitable estoppel test, the issue was argued and briefed before the court, with counsel submitting legal memoranda regarding the appropriate factors. Under these circumstances, we determine that the estoppel factors were not issued by sua sponte order (see generally Mashreqbank PSC v. Ahmed Hamad Al Gosaibi & Bros. Co., 23 NY3d 129, 133 [2014]). Likewise, we reject respondent’s contention that the estoppel factors, at best, constituted an advisory opinion since that portion of the order was directly related to the final determination of the merits of the case and, therefore, affected a substantial right, and was appealable (see Brown v. State of New York, 250 AD2d 314, 320 [3d Dept 1998]). Turning to the merits, however, we do not find petitioner’s arguments availing. Significantly, petitioner never specifically objected to the criteria enumerated by the motion court, although given the opportunity to do so, and, on appeal, she does not single out any one factor, but asserts that the test is unfair because she claims that she must prove each factor by clear and convincing evidence. Petitioner’s position ignores the explicit language of the court’s decision, which states that “[t]he ultimate determination of parenthood shall be predicated upon the best interests of the child” and “[i]n consideration thereof, the court will determine and consider the extent to which the petitioner, by clear and convincing evidence [met the court's equitable estoppel criteria]” (emphasis added). We view Supreme Court’s list of criteria to be considered at the trial in this case as neither exclusive nor dispositive, and therefore consistent with the Court of Appeals’ rejection of “ the premise that we must now declare that one test would be appropriate for all situations, or that the… tests [proposed by the litigants and amici] are the only options that should be considered” (Brooke S.B. v. Elizabeth A.C.C., 28 NY3d 1, 27 [2016]). Given that the factors enumerated by the motion court encompass criteria proposed by both parties and closely track evidence relied upon in other cases (see e.g. Matter of Shondel J. v. Mark D., 7 NY3d 320 [2006]; Matter of Chimienti v. Perperis, 171 AD3d 1047 [2d Dept 2019], lv denied 33 NY3d 912 [2019]), petitioner’s position that she is being subjected to a stringent test in which she must definitively “prove” every factor is unpersuasive. Moreover, the motion court specifically expressed concern about creating a “heightened legal barrier” or “any unique challenge” for nontraditional families, and, to that end, noted that it “remains available to address any objection which may come to light as this matter proceeds.” The motion court further noted that it identified estoppel factors at the parties’ urging “in order that any appointed forensic expert, as well as all others concerned with the orderly progression of this matter, [may] be properly guided.” Under these circumstances, we find that the estoppel factors listed by the court are appropriate for consideration at trial in this case, and should not be disturbed. Finally, petitioner appeals from separate orders appointing an attorney for the child and a neutral forensic evaluator, to the extent that they directed her to pay 100 percent of their costs, subject to reallocation. The court, as parens patriae, has authority to direct petitioner to pay the costs associated with the attorney for the child (see People ex rel. KM v. SF, 31 Misc 3d 505, 511-512 [Sup Ct, NY County 2011]). The function of the neutral forensic evaluator is to assist the court in deciding what is in the best interests of the child. Accordingly, the court may also exercise its parens patriae authority to allocate payment of the neutral forensic evaluator as between the parties. In light of the disparate financial positions of the parties, we find that the motion court appropriately exercised its discretion in allocating the fees, particularly since each order is subject to reallocation. We have considered the parties’ remaining contentions and find them either unavailing or academic in light of our determination. This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
