granting in part IFF’s post-trial motion, IFF was engaged in both defense of the declaratory judgment action and prosecution of its counterclaim. As to this period, IFF can therefore only recover the reasonable fees and expenses it incurred, to the extent that they represent costs of defense. On the basis of the proofs submitted by IFF which specify the costs and fees incurred, the Court’s familiarity with the litigation, and the equities of the case, this Court holds that two-thirds (%) of the reasonable costs incurred during this period are attributable to the defense of the declaratory judgment action and one-third (Vs) of the costs and fees incurred are attributable to the prosecution of the counterclaim. Cf Allstate Insurance Co. v. Aetna Casualty & Surety Co., 475 N.Y.S.2d at 222 (<HOLDING>). From May 1986 until June 1986, IFF was
holding on summary judgment before the question of the insurers obligation to indemnify was decided that the insurer was liable for the costs of the insured in defending the declaratory judgment action because it breached its duty to defend holding that insured may recover legal fees incurred in defending itself in a declaratory judgment action brought by insurer but not for those incurred in prosecuting cross claims and counterclaims against insurers holding that insured could recover the costs of defending a declaratory judgment action brought by the injured party to compel the insurer to defend but could not recover the costs associated with prosecuting crossclaims against the insurer holding that insured who brought third party action against insurer could recover costs incurred in defending insurers counterclaim for declaratory relief since the insureds posture in the counterclaim was that of a defendant holding in a case where the insurer brought a declaratory judgment action and the insured filed a counterclaim that 60 of the costs were attributable to defending and 40 to prosecuting