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Malik v. Charter Oak Fire Insurance Co.

March 31, 2009

JOHN R. MALIK, SR., PLAINTIFF,
v.
CHARTER OAK FIRE INSURANCE COMPANY, ETC., RESPONDENT, LOIS M. ROSENBLATT, ETC., APPELLANT.



In an action for a declaration that the defendant Charter Oak Fire Insurance Company and Travelers Insurance Company is obligated to defend and indemnify the plaintiff in an action entitled Rosenblatt v Malik, pending in the Supreme Court, Queens County under Index No. 9742/05, the defendant Lois M. Rosenblatt, Public Administrator of the goods, chattels and credits of Juan Manuel Chametla, deceased, appeals from an order of the Supreme Court, Nassau County (Parga, J.), dated March 13, 2008, which granted the motion of the defendant Charter Oak Fire Insurance Company and Travelers Insurance Company for summary judgment, in effect, declaring that it was not 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.

STEVEN W. FISHER, J.P., MARK C. DILLON, ARIEL E. BELEN and CHERYL E. CHAMBERS, JJ.

(Index No. 2834/06)

DECISION & ORDER

ORDERED that the order is reversed, on the law, without costs or disbursements, and the motion of the defendant Charter Oak Fire Insurance Company and Travelers Insurance Company for summary judgment, in effect, declaring that it was not obligated to defend and indemnify the plaintiff in the underlying action is denied.

In this declaratory judgment action, the plaintiff, John R. Malik, Sr., sought defense and indemnification from the Charter Oak Fire Insurance Company, incorrectly sued herein as Charter Oak Fire Insurance Company and Travelers Insurance Company (hereinafter Charter Oak) in the wrongful death action brought against him by Lois M. Rosenblatt, Public Administrator of the goods, chattels, and credits of Juan Manuel Chametla (hereinafter the Public Administrator).

The underlying action arose from the tragic, accidental shooting on October 18, 2004, of Juan Chametla, a young man working in a convenience store in Astoria, Queens, by Malik, a retired police detective. Malik was legally carrying a gun, as he was on his way to work as a security supervisor. He entered the store in which Chametla was working and while engaged in "horseplay" with Chametla, Malik took out his gun, which accidentally discharged, hitting Chametla in the leg. Chametla died from the wound.

It is uncontroverted that Malik did not notify Charter Oak, his home insurance carrier, when the incident occurred or soon thereafter. Malik contended that he was consumed with guilt and the criminal proceedings brought against him. He pleaded guilty on April 18, 2005, to manslaughter in the second degree for recklessly causing Chametla's death and was sentenced to one to three years in prison.

Soon after the shooting, Chametla's father retained counsel to initiate a civil action against Malik. Counsel wrote to Malik by letter dated November 2004 to advise him that a wrongful death claim existed and asked him to notify his carrier and advise counsel of the carrier's name, address, and policy number. It was then discovered that Chametla had fathered a son, then six years old, who resided in Mexico. Counsel for Chametla's estate continued to attempt to obtain Malik's insurance information by contacting Malik's attorney in the criminal action by letter, phone calls, and fax, all to no avail.

On April 29, 2005, 11 days after Malik's plea of guilty, the Public Administrator, on behalf of Chametla's estate, filed a summons and complaint alleging that Malik negligently, grossly negligently, recklessly, and carelessly caused Chametla's death. A courtesy copy of the complaint was sent to Malik's attorney in the criminal action on May 3, 2005, with a letter reiterating the demand for insurance information. No one notified the Public Administrator of the name and address of Malik's insurer; however, the summons and complaint in the Public Administrator's action were forwarded to Charter Oak on May 20, 2005, seven months after the occurrence.

Charter Oak contacted the Public Administrator's counsel for information about the claim on May 23, 2005, and counsel provided the Charter Oak representative with all the information at his disposal.

By letter dated June 3, 2005, Charter Oak notified its insured and the Public Administrator that it was disclaiming coverage due to the lateness of the notice to it.

Thereafter, Malik brought this action for a judgment declaring that Charter Oak is obligated to defend and indemnify him in the Public Administrator's wrongful death action. The complaint was amended to add the Public ...


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