The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Clifton Park Food Corp. brought this action against defendant Travelers Indemnity Company, alleging that Travelers is obligated to defend and/or indemnify it in an underlying personal injury action brought by third-parties Marilyn Ripperger and her husband, Francis J. Ripperger, Jr. (Compl., Dkt. No. 1:1.) Pending is Travelers' motion for summary judgment pursuant to FED. R. CIV. P. 56(c) seeking a declaration that Travelers is not obligated to defend and/or indemnify Clifton Park. (Dkt. No. 16.) For the reasons that follow, Travelers' motion is granted.
Clifton Park Food Corp. operates an International House of Pancakes restaurant (IHOP) in Clifton Park, New York. (Compl. ¶ 1, Dkt. No. 1:1; Miano Aff. ¶ 3, Dkt. No. 17:2.) Travelers Indemnity Company, an insurance company, issued a commercial general liability policy to Clifton Park, the named insured, covering the Clifton Park IHOP premises for the period of October 24, 2006, to October 24, 2007. (Def. SMF ¶ 3, Dkt. No. 6:1.) Under the policy, Clifton Park is required to notify Travelers "as soon as practicable of an 'occurrence' or an offense which may result in a claim."
(Shelton Aff., Ex. C, Policy at § IV, Dkt. No. 16:6.)
On April 21, 2008, third-parties Marilyn Ripperger and Francis J. Ripperger, Jr. brought an action in New York State Supreme Court, Greene County, for injuries allegedly sustained as a result of Clifton Park's negligence. (See generally Compl., ¶ 5, Dkt. No. 1:1.) The Rippergers allege that they were patrons at the Clifton Park IHOP on the night of October 19, 2007, when Mrs. Ripperger slipped and fell on a wet floor outside the ladies room. (See id.)
At the time of the incident, Clifton Park employee Anna Olsen was on duty in her capacity as server and "Crew Chief" at the Clifton Park IHOP. (Olsen Aff. ¶ 3, Dkt. No. 17:3.) At approximately 10:00 p.m., a customer advised Olsen that a woman, Mrs. Ripperger, was lying on the floor near the restrooms. (Def. SMF ¶ 11, Dkt. No. 16:1.) Olsen went to Mrs. Ripperger, who told Olsen that she had slipped and hurt her ankle. (Id. at ¶ 14.) According to Mrs. Ripperger, the slip caused her foot to collide with a wall and her head to collide with the ground. (Id. at ¶ 9.) Olsen helped Mrs. Ripperger from the floor onto a bench in the foyer area, and alerted Mr. Ripperger that his wife had fallen. (Id. at ¶¶ 12, 13.) Upon Mrs. Ripperger's request, Olsen called an ambulance. (Id. at ¶ 15, 16.) Prior to the ambulance's arrival, Olsen collected the Rippergers' names, address, and telephone number. (Id. at ¶ 17.) At the time of the accident, it was Clifton Park's policy to collect such information from any injured person for purposes of filling out an accident report. (Id. at¶ 21.) Upon arrival, the paramedics, according to Mrs. Ripperger, placed a cervical collar on her, examined her foot, placed her on a stretcher, and loaded her into the ambulance, which transported her from the scene. (Id. at ¶ 18, 19.) Soon after the accident, Olsen notified a Clifton Park General Manager of what had occurred and provided her with the contact information she collected from the Rippergers. (Id. at ¶ 20.) Then, within a few days of the accident, the General Manager informed another Clifton Park manager of what had happened. (Id. at ¶ 23.)
Travelers first received notice of the October 19, 2007 accident on April 8, 2008, when it received a copy of a March 24, 2008 letter of representation that the Rippergers' attorney sent to Clifton Park. (Id. at ¶ 24; Def. Mem. of Law at 5, Dkt. No. 16:2.) Upon receipt of the letter, Travelers contacted Rick Miano, Clifton Park CEO, and Tony Amodio, then District Manager of Clifton Park, inquiring about the accident. (See Pl. Mem. of Law at 3, Dkt. No. 17.) On April 24, 2008, Travelers issued a letter to Clifton Park disclaiming coverage for the incident on the basis that Clifton Park failed to provide timely notice of the occurrence. (Def. SMF ¶ 25, Dkt. No. 16:1.) On May 10, 2008, the Rippergers filed the underlying action against Clifton Park. (Id. at ¶ 26.)
On September 30, 2008, Clifton Park filed suit against Travelers in New York State Supreme Court, Saratoga County, seeking a declaratory judgment that Travelers was obligated to defend and/or indemnify it in the action commenced by the Rippergers. (See Compl., Dkt. No. 1:1.) Travelers then sought removal of the action to the United States District Court for the Northern District of New York based on diversity jurisdiction under 28 U.S.C. § 1332(a)(1). (See Dkt. No. 1.) The present action was removed to this court on November 7, 2008. (Id.) Following discovery, Travelers moved for summary judgment pursuant to FED. R. CIV. P. 56(c).
The standard for the grant of summary judgment is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town ...