Opinion
May 31, 1994
Appeal from the Supreme Court, Nassau County (Ain, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion for summary judgment is denied, the cross motion for summary judgment is granted, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment declaring that Liberty Mutual Insurance Company is not obligated to defend and indemnify Donald F. Smith in the underlying negligence action.
The plaintiff has failed to proffer any evidence to establish a contractual duty on behalf of the defendant Liberty Mutual Fire Insurance Company (hereinafter Liberty) to defend or indemnify the insured, Donald F. Smith, with respect to the pending negligence action involving an injury sustained by the insured's son at the plaintiff's swimming pool in Florida. On this record, we find that Smith's homeowner's insurance policy with Liberty specifically excluded from coverage the injury in this case.
Contrary to the plaintiff's contention, Liberty's disclaimer in this case was valid. Insurance Law § 3420 (d) requires an insurer to provide reasonably prompt written notice of a disclaimer of accidents which occur within the State of New York to the insured, the injured person, or "any other claimant" (cf., Newman v. Ketani, 54 A.D.2d 926). Since the accident in this case occurred in Florida, Insurance Law § 3420 (d) is inapplicable (see generally, Matter of Sentry Ins. Co. [Amsel], 36 N.Y.2d 291; Bellafonte Re-Ins. Co. v. Volkswagenwerk AG, 102 A.D.2d 753; Grening v. Empire Mut. Ins. Co., 101 A.D.2d 550, 552; Ogden Corp. v. Travelers Indem. Co., 739 F. Supp. 796, 803, affd 924 F.2d 39). Accordingly, without deciding whether timely written notice was given to the insured under Insurance Law § 3420 (d), or whether the plaintiff was a "claimant" within the meaning of Insurance Law § 3420 (d), Liberty was not precluded from disclaiming liability.
In light of our determination, it is unnecessary to decide the parties' remaining contentions. Balletta, J.P., Copertino, Friedmann and Goldstein, JJ., concur.