Opinion
2014-07-23
Darling FERREIRA, appellant, v. GLOBAL LIBERTY INSURANCE COMPANY OF NEW YORK, respondent.
Michael D. Ribowsky, Richmond Hill, N.Y., for appellant. Brand Glick & Brand, P.C., Garden City, N.Y. (Heather Hammerman of counsel), for respondent.
Michael D. Ribowsky, Richmond Hill, N.Y., for appellant. Brand Glick & Brand, P.C., Garden City, N.Y. (Heather Hammerman of counsel), for respondent.
In an action pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against the defendant's insured, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), dated March 21, 2013, which denied her motion for summary judgment on the complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying the plaintiff's motion for summary judgment on the complaint and substituting therefor a provision granting that motion to the extent of awarding her the sum of $100,000, plus interest from the date of entry of the underlying judgment, and the motion is otherwise denied; as so modified, the order is affirmed, with costs to the plaintiff.
The plaintiff commenced this action pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against the defendant's insured in an underlying personal injury action. The defendant issued a letter disclaiming coverage on March 28, 2012, on the basis of the insured's failure to cooperate. The plaintiff contends that the disclaimer is invalid because it was untimely served and did not deny coverage on the basis of the plaintiff's failure to inform the defendant of the lawsuit.
The plaintiff demonstrated her prima facie entitlement to judgment as a matter of law by proffering evidence that a copy of the underlying judgment with notice of entry was served upon the defendant, and that after 30 days the judgment still remained unsatisfied ( see Alejandro v. Liberty Mut. Ins. Co., 84 A.D.3d 1132, 1133, 924 N.Y.S.2d 124;Jimenez v. New York Cent. Mut. Fire Ins. Co., 71 A.D.3d 637, 639, 897 N.Y.S.2d 143;Hernandez v. American Tr. Ins. Co., 60 A.D.3d 634, 634, 875 N.Y.S.2d 125). In opposition, the defendant failed to raise a triable issue of fact.
Contrary to the defendant's contention, its disclaimer of coverage was ineffective. An insurance company has an affirmative obligation to provide written notice of a disclaimer of coverage as soon as is reasonably possible, even where the policyholder's own notice of the claim to the insurer is untimely ( see Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028, 1029–1030, 416 N.Y.S.2d 539, 389 N.E.2d 1061;Prudential Prop. & Cas. Ins. v. Persaud, 256 A.D.2d 502, 504, 682 N.Y.S.2d 412). Here, the defendant learned by January 6, 2012, at the latest, about the underlying personal injury action. The defendant was aware by that date of the grounds for disclaimer of coverage ( see Republic Franklin Ins. Co. v. Pistilli, 16 A.D.3d 477, 479, 791 N.Y.S.2d 639). Nevertheless, it did not disclaim coverage until March 28, 2012, almost three months later, a delay that, under the circumstances of this case, is unreasonable as a matter of law ( see Guzman v. Nationwide Mut. Fire Ins. Co., 62 A.D.3d 946, 947, 880 N.Y.S.2d 302;Moore v. Ewing, 9 A.D.3d 484, 488, 781 N.Y.S.2d 51;Faas v. New York Cent. Mut. Fire Ins. Co., 281 A.D.2d 586, 587, 722 N.Y.S.2d 173;Matter of Colonial Penn Ins. Co. v. Pevzner, 266 A.D.2d 391, 391, 698 N.Y.S.2d 310;Matter of Prudential Prop. & Cas. Ins. v. Persaud, 256 A.D.2d at 504, 682 N.Y.S.2d 412). Accordingly, the plaintiff's motion for summary judgment on the complaint should have been granted.
The defendant is correct that recovery should be limited to the sum of $100,000, which is the limit of the subject policy ( see Insurance Law § 3420 [a][2]; Giraldo v. Washington Intl. Ins. Co., 103 A.D.3d 775, 775–776, 962 N.Y.S.2d 171;Smith v. Allstate Ins. Co., 38 A.D.3d 522, 523, 832 N.Y.S.2d 587;Burgos v. Allcity Ins. Co., 272 A.D.2d 195, 195, 707 N.Y.S.2d 438). However, the plaintiff is entitled to interest on the sum of $100,000, which accrued since the entry of the underlying judgment ( see Friedman v. Progressive Direct Ins. Co., 100 A.D.3d 591, 592, 953 N.Y.S.2d 293;NYAT Operating Corp. v. GAN Natl. Ins. Co., 46 A.D.3d 287, 288, 847 N.Y.S.2d 179; Levit v. Allstate Ins. Co., 308 A.D.2d 475, 477, 764 N.Y.S.2d 452).
In light of our determination, we need not reach the plaintiff's remaining contention. SKELOS, J.P., DICKERSON, COHEN and DUFFY, JJ., concur.