MOTION DATE 3/25/13
PRESENT: Hon. Arthur F. Enqoron Justice
The following papers, numbered 1 to 4, were read on this motion by plaintiff for summary judgment
Moving Papers1 Opposition Papers 2 3 Reply Papers 4 Upon the foregoing papers, the instant motion is granted.
Basic Factual Background
Defendant Anlovi Corporation owns the building at and known as 1275 Edward L. Grant Highway, Bronx, New York. Since before the time here in issue, Defendant Franklin Oleh, Sr., and his two infant children, Franklin Oleh, Jr., and Joshua Oleh, have resided in the building. At the times here in issue, Michel (or "Michkel") Davis was the building manager, and, at least for part of this time, Richard Taylor was the building superintendent.
In or about February 2008, plaintiff Castlepoint Insurance Company issued a commercial general liability insurance policy to Anlovi covering the building. The policy has a standard notice provision (Moving Aff. at 3) requiring notice "as soon as practicable" and allowing for notice "on behalf of the [injured] person." Davis apparently was the only Anlovi employee who knew that Castlepoint was the building's insurer. During this time period, Anthony Viaer was in failing health; he died on July 15, 2009. Thus, Davis was essentially running the building's affairs.
In October 2008, Joshua Oleh was allegedly burned by hot water while he was bathing. On January 24, 2009, Franklin Oleh, Jr., was allegedly burned in the same manner. That same day, Franklin Oleh, Sr., telephoned Taylor and notified him of that day's incident (and perhaps of Joshua's earlier incident as well). Taylor told Davis, but neither Davis nor Anlovi nor any of its employees notified Castlepoint.
Within a few days of the January burn, the Olehs retained attorney Elliot Fuld. By letter dated January 27, 2009 (Moving Exh. K), sent by regular and certified mail to "Anlovi Corporation, " "Michkel Davis, " "Anthony Vaier, " and Darryl Collins (another building employee) (collectively, "the addressees") at the address listed on the City Department of Building's website as being Anlovi's (1656 University Avenue, Bronx, NY 10453), Fuld imparted the basics of the January bum claim and asked the addressees to "forward this letter to your liability carrier so that an amicable resolution of this matter can be reached." On or about February 23, 2009, on behalf of Franklin Oleh, Sr., as parent and natural guardian, Fuld sued Anlovi in Supreme Court, Bronx-County (Index No. 350130/09), based on the burns. Fuld served process on Anlovi via the Secretary of State, which on March 10, 2009 attempted by mail to notify Anlovi.
By letter dated April 7, 2009 (Moving Exh. K) Fuld notified the addressees that he had commenced suit, had not yet received an answer "from you or your liability insurance carrier, " and would be forced to move for a default judgment. By notice of motion dated April 17, 2009, the Olehs moved for a default judgment against Anlovi. By letter of the same date (Moving Exh. K), Fuld notified the addressees of the default judgment motion. By letter dated June 9, 2009 (Moving Exh. K) Fuld forwarded a copy of a May 19, 2009 decision addressing the motion for a default judgment; noted that he still had not received an answer "from you or your liability insurance carrier"; and notified the addressees that unless plaintiff heard from them, he would be forced to move (again) for a default judgment.
All of the certified letters were returned as undeliverable; for reasons that are not clear, the subject mail simply did not get through to Davis. He did, however, receive notice, on August 28, 2009, of an Order to Show cause seeking to attach Anlovi's bank account. The Order to Show Cause somehow led to Fuld's learning, on or shortly before October 2, 2009, that Castlepoint had insured Anlovi. On that date Fuld notified Castlepoint of the claims. Castlepoint investigated the claims and on November 9, 2009, disclaimed coverage, alleging late notice.
On or about March 11, 2010 plaintiff commenced the instant action for a declaration that plaintiff is not obligated to defend and/or indemnify Anlovi in the underlying action because Anlovi ...