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J.J.J. Properties, Inc. v. Travelers Indemnity Co.

July 7, 2008

J.J.J. PROPERTIES INC., PLAINTIFF,
v.
THE TRAVELERS INDEMNITY COMPANY, DEFENDANT.



The opinion of the court was delivered by: Conner, Senior D.J.

ECF CASE

OPINION AND ORDER

Plaintiff J.J.J. Properties, Inc. ("JJJ") brings this action for monetary damages and a declaratory judgment against defendant Travelers Indemnity Company ("Travelers"). Plaintiff purchased a commercial general liability policy from defendant. Plaintiff claims that defendant breached the terms of their agreement by refusing to defend and indemnify plaintiff against liability for an accident that occurred on plaintiff's property. Defendant now moves for summary judgment on the ground that plaintiff's untimely notice of claim relieves defendant of its obligation to provide coverage. For all of the following reasons, the motion is denied.

BACKGROUND

Unless otherwise indicated, the following facts are undisputed.

JJJ was incorporated in 1987 by Joseph A. Simonetti ("Simonetti"); his brother, Gerard Simonetti and their father, Joseph C. Simonetti. (Def. R. 56.1 Stmt. ¶ 3.) Simonetti, his brother and his father each owned one third of the outstanding shares of JJJ until the latter's death in 2005, at which time his shares passed to his wife, Adeline Simonetti. (Simonetti Decl. ¶¶ 3, 15.) JJJ's sole business is the ownership of certain real property located at 307 South Main Street, Nyack, New York (the "Premises"). (Def. R. 56.1 Stmt. ¶ 5; Dee Bilka Decl., Ex. I at 20-21.)

JJJ's sole tenant at the Premises is American Minutemen Sewer and Drain Service, Inc. ("American Minutemen"), another business incorporated by the Simonetti family. (Def. R. 56.1 Stmt. ¶ 8.) American Minutemen is in the business of cleaning sewers and drains for commercial, residential and municipal customers. (Id. ¶ 9.) In 1992, Simonetti purchased all of his brother's and father's stock in American Minutemen and became the company's sole shareholder. (Id. ¶ 10.)

Simonetti ran American Minutemen's day-to-day operations from 1977 to 2002, at which time he promoted Scott Hernandez, an American Minutemen employee, to manager. (Simonetti Decl. ¶¶ 16-17.)

Travelers issued general commercial liability policy number I-680-145L963A-IND-03 (the "Policy") to JJJ, effective from June 23, 2003 to June 23, 2004. (Def. R. 56.1 Stmt. ¶ 1.) The Policy provides in relevant part:

Duties In The Event Of Occurrence, Offense, Claim Or Suit

a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include:

(1) How, when and where the "occurrence" took place;

(2) The names and addresses of any injured persons and witnesses; and

(3) The nature and location of any injury or damage arising out of the ...


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