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161 Hudson, LLC v. Sirius America Insurance Co.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 24, 2009

161 HUDSON, LLC, RESPONDENT,
v.
SIRIUS AMERICA INSURANCE COMPANY, APPELLANT, ET AL., DEFENDANTS.

In an action, inter alia, for a judgment declaring that the defendant Sirius America Insurance Company is obligated to defend and indemnify the plaintiff in an underlying action entitled Zhong K. Wang v 161 Hudson LLC, pending in the Supreme Court, Kings County, under Index Number 13240/03, the defendant Sirius America Insurance Company appeals from a judgment of the Supreme Court, Kings County (Held, J.), entered April 1, 2008, which, among other things, declared that it is obligated to defend and indemnify the plaintiff in the underlying action.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO, RANDALL T. ENG, JJ.

(Index No. 450/04)

DECISION & ORDER

ORDERED that the judgment is affirmed, with costs.

The Supreme Court properly found that the defendant Sirius America Insurance Company (hereinafter Sirius) is obligated to defend and indemnify the plaintiff in the underlying action, as the plaintiff demonstrated that the delay by Sirius in issuing a disclaimer of coverage for the underlying lawsuit was unreasonable as a matter of law (see Insurance Law § 3240[d]; Tex Dev. Co., LLC v Greenwich Ins. Co., 51 AD3d 775; Sirius Am. Ins. Co. v Vigo Constr. Corp., 48 AD3d 450; Liberty Mut. Fire Ins. Co. v National Cas. Co., 47 AD3d 770; Matter of Allstate Ins. Co. v Swinton, 27 AD3d 462). Accordingly, Sirius is precluded from disclaiming coverage based on a late notice of claim or policy exclusion (see Insurance Law § 3420[d]; Pile Found. Constr. Co. v Investors Ins. Co. of Am., 2 AD3d 611).

The remaining contentions raised by Sirius either are without merit or need not be reached in light of our determination.

SPOLZINO, J.P., SANTUCCI, ANGIOLILLO and ENG, JJ., concur.

20090224

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