Opinion
137 Index No. 650451/15 Case No. 2022–01573
04-27-2023
NATIONAL INTERSTATE INSURANCE COMPANY et al., Plaintiffs–Appellants–Respondents, v. INTERSTATE INDEMNITY COMPANY, Defendant–Respondent–Appellant, 1690 Broadway Concrete Corp. doing business as Broadway Concrete et al., Defendants.
Hurwitz Fine P.C., Buffalo (Brian D. Barnas of counsel), for appellants-respondents. Tressler LLP, New York (Kiera Fitzpatrick of counsel), and Tressler LLP, Morristown, NJ (Timothy M. Jabbour of the bar of the State of New Jersey, admitted pro hac vice, of counsel), for respondent-appellant.
Hurwitz Fine P.C., Buffalo (Brian D. Barnas of counsel), for appellants-respondents.
Tressler LLP, New York (Kiera Fitzpatrick of counsel), and Tressler LLP, Morristown, NJ (Timothy M. Jabbour of the bar of the State of New Jersey, admitted pro hac vice, of counsel), for respondent-appellant.
Webber, J.P., Moulton, Scarpulla, Mendez, Rodriguez, JJ.
Order, Supreme Court, New York County (Erika Edwards, J.), entered on or about October 7, 2021, which denied plaintiffs’ and defendant's motions for summary judgment, unanimously affirmed, without costs.
In this declaratory judgment action, plaintiffs National Interstate Insurance Company and New York Crane & Equipment Corporation (N.Y. Crane) seek an order declaring that N.Y. Crane is entitled to a defense and indemnification in an underlying action, as an additional insured on a policy issued by defendant Interstate Indemnity Company to 1690 Broadway Concrete Corp. Interstate disclaimed coverage, on the basis that N.Y. Crane failed to provide timely notice to Interstate.
The court properly denied both motions for summary judgment. Where, as here, an insurance policy requires that the insured provide notice as soon as practicable, such notice must be provided within a reasonable time under all the circumstances of the case (see Great Canal Realty Corp. v. Seneca Ins. C0., Inc., 5 N.Y.3d 742, 743, 800 N.Y.S.2d 521, 833 N.E.2d 1196 [2005] ; 24 Fifth Owners, Inc. v. Sirius Am. Ins. Co., 124 A.D.3d 551, 551, 998 N.Y.S.2d 632 [1st Dept. 2015] ). Although reasonableness may be assessed by the court in the absence of any excuse for the delay or mitigating factors (see Jenkins v. Burgos, 99 A.D.2d 217, 220, 472 N.Y.S.2d 373 [1st Dept. 1984] ), the question of reasonableness is normally a factual issue for a jury ( 24 Fifth Owners at 551, 998 N.Y.S.2d 632 ).
While the delay in providing notice in this case was lengthy, the record raises issues of fact as to when plaintiffs, with due diligence, should have known that Interstate was Broadway Concrete's insurance carrier, and whether they gave notice to Interstate as soon as reasonably proper under the circumstances (see U.S. Underwriters Ins. Co. v. Carson, 49 A.D.3d 1061, 1064, 853 N.Y.S.2d 700 [3d Dept. 2008] ; GA Ins. Co. of N.Y. v. Simmes, 270 A.D.2d 664, 666–667, 704 N.Y.S.2d 700 [3d Dept. 2000] ; see also Wausau Ins. Cos. v. Feldman, 213 A.D.2d 179, 181, 623 N.Y.S.2d 242 [1st Dept. 1995] ; Hartford Acc. & Indem. Co. v. CNA Ins. Cos., 99 A.D.2d 310, 313–314, 472 N.Y.S.2d 342 [1st Dept. 1984] ). Contrary to Interstate's contention, the record is insufficient to establish that plaintiffs, who possessed a certificate of insurance listing a previous policy issued by Interstate to Broadway Concrete, had sufficient information prior to April 2014 to identify Interstate as Broadway Concrete's liability insurer (cf. Lafarge Bldg. Materials Inc. v. Harleysville Ins. Co. of N.Y., 166 A.D.3d 1116, 1118–1119, 86 N.Y.S.3d 654 [3d Dept. 2018] ), or that plaintiffs otherwise failed to act diligently in providing notice. Moreover, plaintiffs did not establish, as a matter of law, that they provided notice within a reasonable time (see generally Lumbermens Mut. Ins. Co. of Kemper Group of Ins. Cos. v. Lumber Mut. Ins. Co., 148 A.D.2d 328, 330, 538 N.Y.S.2d 542 [1st Dept. 1989] ), or that they acted diligently in ascertaining the identity of Broadway Concrete's liability insurer.
While the protections of Insurance Law § 3420(d) may be inapplicable to an insurer's claim for reimbursement against another insurer, plaintiffs demonstrated that defendant failed to give timely written notice of its disclaimer, based on the wrap-up exclusion, to plaintiff additional insured, N.Y. Crane (see Insurance Law § 3420[d] ; AVR–Powell C Dev. Corp. v. Utica First Ins. Co., 174 A.D.3d 772, 774, 106 N.Y.S.3d 320 [2d Dept. 2019] ; Admiral Ins. Co. v. State Farm Fire & Cas. Co., 86 A.D.3d 486, 488–489, 927 N.Y.S.2d 629 [1st Dept. 2011] ). We decline to consider defendant's argument that N.Y. Crane's primary insurer is actually the sole real party in interest, such that Insurance Law § 3420(d) would be inapplicable (see Greater N.Y. Mut. Ins. Co. v. Chubb Indem. Ins. Co., 105 A.D.3d 523, 963 N.Y.S.2d 218 [1st Dept. 2013] ), as this argument presents factual issues that were not submitted to the motion court (see Mable v. 384 E. Assoc., LLC, 175 A.D.3d 1127, 1129, 107 N.Y.S.3d 284 [1st Dept. 2019] ).