Opinion
No. 2010-02111.
February 1, 2011.
In an action for a judgment declaring that the defendant QBE Insurance Corporation is obligated to defend and indemnify Ciampa 21, LLC, in an underlying action entitled Pacheco v Ciampa 21, LLC, commenced in the Supreme Court, Kings County, under index No. 31686/04, the defendant QBE Insurance Corporation appeals from an order of the Supreme Court, Nassau County (Iannacci, J.), entered February 2, 2010, which denied its motion for summary judgment, in effect, declaring that it is not so obligated and granted the plaintiffs cross motion for summary judgment declaring that it is so obligated.
Newman Myers Kreines Gross Harris, P.C., New York, N.Y., (Olivia M. Gross and Howard B. Altman of counsel), for appellant.
Meyer, Suozzi, English Klein, P.C., Garden City, N.Y., (Brian Michael Seltzer and Robert N. Zausner of counsel), for respondent.
Before: Mastro, J.P., Rivera, Austin and Román, JJ.
Ordered that the order is reversed, on the law, with costs, the motion of the defendant QBE Insurance Corporation for summary judgment, in effect, declaring that it is not obligated to defend or indemnify Ciampa 21, LLC, in the underlying action is granted, the plaintiffs cross motion for summary judgment declaring that the defendant QBE Insurance Corporation is so obligated is denied, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant QBE Insurance Corporation is not obligated to defend or indemnify Ciampa 21, LLC, in the underlying action.
The defendant QBE Insurance Corporation (hereinafter QBE) established, prima facie, that it was not obligated to defend and indemnify the plaintiff, Ciampa 21, LLC, in an underlying personal injury action because it properly disclaimed coverage on the ground of late notice of the underlying accident ( see QBE Ins. Corp. v D. Gangi Contr. Corp., 66 AD3d 593; Sputnik Rest. Corp. v United Natl. Ins. Co., 62 AD3d 689; Quality Invs., Ltd. v Lloyd's London, England, 11 AD3d 443). The plaintiff failed to raise a triable issue of fact in response.
In view of the foregoing, we need not reach QBE's alternative contention.
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the' entry of a judgment declaring that QBE is not obligated to defend and indemnify Ciampa 21, LLC, in the underlying action ( see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).