United States District Court, E.D. New York
MT. HAWLEY INSURANCE COMPANY, Plaintiff,
ABRAHAM LITTLE NECK DEVELOPMENT GROUP, INC., and GILBERTO DIAZ, Defendants
For Mt. Hawley Insurance Company, Plaintiff: Elsa Johanna Schmidt, Timothy E. Delahunt, Kenney Shelton Liptak Nowak LLP, Buffalo, NY.
For Abraham Little Neck Development Group, Inc., Defendant: Tal Hirshberg, Kirschenbaum & Kirschenbaum, Garden City, NY.
For Gilberto Diaz, Defendant: Jeffrey B. Gold, Gold Benes LLP, Bellmore, NY; Melissa Beth Levine, Gold, Stewart, Kravatz, Benes & Stone, LLP, Westbury, NY; Steven D. Gacovino, Gacovino, Lake & Associates, P.C., Sayville, NY.
REPORT AND RECOMMENDATION
Arlene R. Lindsay, United States Magistrate Judge.
This is an insurance coverage dispute arising from the alleged injuries of the defendant Gilberto Diaz (" Diaz") in September 2008. The accident occurred at a construction site managed by the defendant Abraham Little Neck Development Group, Inc. (" Abraham"), who was insured by the plaintiff, Mt. Hawley Insurance Company (" Mt. Hawley"). Before the court, on referral from District Judge Chen, is the plaintiff's renewed motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth herein, the undersigned recommends that the motion be granted.
A. Factual Background
Diaz was allegedly injured while he was working as an employee of non-party E. Anderson Enterprises (" Anderson"), a framing subcontractor hired by Abraham. At the time of the accident, Abraham was insured under a commercial general liability policy (" the policy") issued by Mt. Hawley. Pursuant to the terms of the policy, Abraham was required to provide Mt. Hawley notice " as soon as practicable of an 'occurrence' or an offense which may result in a claim." Delahunt Aff., Ex. 3, Section IV(2)(a).
On November 14, 2008, Diaz's attorney, Scott Zlotolow ('Zlotolow") notified Abraham in writing that his client had been injured at its construction site (" the November 14 letter"). Id., Ex. 8. Zlotolow's letter contained the following language:
Kindly forward this letter to your insurance carrier in order that they may contact us immediately with a view towards an amicable adjustment herein.
Id. Despite Zlotolow's request, Abraham did not forward the letter to Mt. Hawley. Instead, on November 18, 2008, Abraham wrote to Zlotolow, indicating in its letter that Diaz was not an employee of Abraham, his injuries were covered by worker's compensation insurance, and his employer had signed a hold harmless agreement with Abraham. See Mt. Hawley, 825 F.Supp.2d at 388.
According to Zlotolow, upon receipt of Abraham's response, Anthony Bilello from his office called Abraham. Bilello told Zlotolow that Abraham's representative indicated that the company's position had been set forth in the November 18 letter and they " wouldn't even confirm if [the company] had coverage." Id., Ex. 3 at 16:18-19:12. Accordingly, on November 21, 2008, Zlotolow sent Abraham a second letter in which he stated:
I am in receipt of your correspondence dated November 18, 2008 and thank you for the same. However, as it appears that your group was the general contractor at the job site where my client was injured, I respectfully request that [you] notify your ...