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Industry City Management v. Atlantic Mutual Insurance Co.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


July 7, 2009

INDUSTRY CITY MANAGEMENT, ET AL., PLAINTIFFS-APPELLANTS,
v.
ATLANTIC MUTUAL INSURANCE COMPANY, DEFENDANT-RESPONDENT.

Order and judgment (one paper), Supreme Court, New York County (Walter B. Tolub, J.), entered October 25, 2007, which, insofar as appealed from as limited by the briefs, denied plaintiffs' motion for summary judgment declaring that defendant is obligated to indemnify plaintiffs Industry City Management, 1-10, Industry Associates, LLC, 1-10, and Industry Associates Corp. (collectively Industry) in the amount of $250,000 for their portion of the settlement paid in the underlying personal injury action, and granted defendant's cross motion for summary judgment declaring that it was not obligated to defend and indemnify plaintiffs in the underlying action, unanimously reversed, on the law, without costs, defendant's cross motion denied and plaintiffs' motion granted, and it is declared that defendant is obligated to indemnify Industry in the amount of $250,000.

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.

Gonzalez, P.J., Mazzarelli, Andrias, Moskowitz, Renwick, JJ.

114330/05

Industry correctly argues that a March 2005 letter to defendant, written on Industry's behalf by its own insurer's claims administrator, seeking coverage for Industry as an additional insured, constituted timely notice to the insurer within the meaning of Insurance Law § 3420(a)(3), and as such required a timely disclaimer from defendant (see JT Magen v Hartford Fire Ins. Co., AD3d , 879 NY2d 100 [1st Dept. 2009]; Bovis Lend Lease LMB, Inc. v Garito Contr., Inc., 38 AD3d 260, 261 [2007]; Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co., 27 AD3d 84, 89-90 [2005]). Because defendant's disclaimer of coverage, which was based on Industry's allegedly untimely notice, was not issued until seven months later, it was untimely and therefore ineffective (see Insurance Law § 3420[d]; West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278 [2002], lv denied 98 NY2d 605 [2002]; Consolidated Edison Co. of N.Y. v United States Fid. & Guar. Co., 263 AD2d 380, 381 [1999]; Thomson v Power Auth. of State of N.Y., 217 AD2d 495, 497 [1995]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090707

© 1992-2009 VersusLaw Inc.



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