Opinion
7158-05.
Decided March 12, 2007.
Lustig Brown, LLP, Attorneys for Plaintiff, Centerpointe Corporate Park, Buffalo, NY.
Carolyn B. George, Esq., Friedman, Hirschen Miller, LLP, Attorneys for Defendants Great American Insurance Company of New York and D B Building, Inc., Albany, NY.
Kenney, Shelton, Liptak, Nowak, LLP, Attorneys for Defendants Travelers Property Casualty, Company of America and The Pike Company, Inc., Buffalo, NY.
Patricia S. Perez, Esq., Tarshis, Catania, Liberth, Mahon Milligram, PLLC, Attorneys for Third-Party Defendants, Newburgh, NY.
Defendants, Great American-Insurance Company of New York and D B Building, Inc. (Hereinafter Great American), bring this motion for summary judgment pursuant CPLR 3212(b) to dismiss Plaintiff's complaint and to dismiss the cross-claim of Defendants, Travelers' Property Casualty Company of America, the Pike Company, Inc and Saratoga National Golf Club, Inc.(hereinafter Travelers' Property). Defendants, Travelers' Property, Plaintiff and Third-Party Defendants oppose the motion. Plaintiff also brings a cross-motion for partial summary judgment pursuant to CPLR § 3212 against Great American. Great American opposes the motion.
After fully reviewing the record, this Court denies the motion by Defendants, Great American Insurance Company of New York and D B Building, Inc, for summary judgment and grants Plaintiff's cross-motion for partial summary judgment, dismissing Great American's affirmative defense that Plaintiff unreasonably delayed notice of claim.
Plaintiff and Defendants seek defense and indemnification from Great American for an underlying personal injury action that took place at the Saratoga National Golf Club (insured by Plaintiff). The Clubhouse in question was new construction upon which both D B Building (insured by Great American) and the Pike Company (insured by Travelers' Property) worked.
"Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue" ( Napierski v. Finn, 229 AD2d 869, 870 [3d Dept 1996]). The court's main function in granting summary judgment is issue identification, rather than issue determination ( See Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395). The party seeking summary judgment has the burden of establishing its entitlement thereto as a matter of law ( See Wingrad v. New York University Medical Center, 64 NY2d 851). The party opposing the motion will be given the benefit of every reasonable inference ( See Boyce v. Vazquez, 249 AD2d 724; see also Dykestra v. Winridge Condominium One, 175 AD2d 482 [3d Dept 1991]). In order to defeat a motion for summary judgment the party opposing the motion must produce evidentiary proof sufficient to establish the existence of material issues of fact requiring a trial ( See Alvarez v. Prospect Hospital, 68 NY2d 320; see also Zuckerman v. City of New York, 49 NY2d 557, 562).
Plaintiff seeks defense and indemnification on behalf of its client under a Contractor's General Liability (CGL) Policy issued to D B Building, Inc. by Great American Insurance Company. The policy extended to cover owners (such as Plaintiff's insured) upon whose property D B Building, Inc., was working, but Great American contends that Plaintiff is not covered because D B's work on Saratoga National's property concluded prior to the alleged accident.
Defendants, Travelers' Property, seek defense and indemnification under the Owner's and Contractor's Protective (OCP) Policy to protect its clients who were subcontractors on the project at Saratoga National. Great American again contends that Travelers' Property is not covered by the policy because D B's work at saratoga National concluded prior to the alleged accident.
Travelers' Property and One Beacon both dispute Great American's claim that D B's construction was finished at the time of the incident. Both claim that work was ongoing in the form of repairs to the construction, raising a triable issue.
Great American further contends that even if Plaintiff or Travelers' Property, were covered on June 21, the demand for defense and indemnification was untimely (pursuant to the policy provisions) in both instances. Plaintiff first demanded coverage on June 13, 2005, nearly four years after the alleged injury. Travelers' Property first demanded coverage more than three years after the alleged injury. Except in cases where some excuse makes the delay reasonable, failure to give reasonable notice of a claim eliminates the insurer's obligations ( AXA Marine and Aviation Ins. (UK) Ltd. v. Seajet Industries Inc., 84 F.3d 622, 625 [2d Cir 1996]). Lacking mitigating circumstances, such as a good faith belief of non-liability, the reasonableness of the notice is an issue of law ( Paul Developers, LLC v. Maryland Cas. Ins. Co. , 28 AD3d 443 [2d Cir 2006]; Security Mut. Ins. Co. of New York v. Acker-Fitzsimons Corp., 31 NY2d 436). Essentially, "the duty to give notice arises when, from the information available relative to the accident, an insured could glean a reasonable possibility of the policy's involvement'"( C.C.R. Realty of Dutchess, Inc. v. New York Cent. Mut. Fire Ins. Co. , 1 AD3d 304 , 305 [2d Dept 2003]).
Here, Plaintiff and Travelers' Property contend that they were unaware that the Great American Policy might potentially be involved in this litigation because they did not know that their insured were additional insured of Great American until an advanced stage in the underlying litigation. This raises a triable issue as to the reasonableness of the delay in each instance.
Additionally, both Plaintiff and defendants, Travelers' Property claim that Great American may not raise the defense of late notice of claim because it did not disclaim coverage on that basis for either party. Plaintiff has filed a cross motion to dismiss Great American's claim of late notice because Great American failed to issue a written disclaimer pursuant to Insurance Law § 3420(d). It is undisputed that Great American never sent any notice of disclaimer to Plaintiff. Great American contends that, as a matter of law, no such disclaimer was necessary because the basis for refusing coverage is not an exclusion, but non-coverage ( A. Servidone, Inc. v. Commercial Underwriter's Ins. Co. , 7 AD3d 942 [3rd Dept 2004]). An insurance company, however, must submit a timely notice of disclaimer, however, before denying coverage based on a delayed notice of claim ( Mohawk Minden Ins. Co. v. Ferry, 251 AD2d 846 [3rd Dept 1998]; Nationwide Mut. Ins. Co. v. Steiner, 199 AD2d 507 [2d Dept 1993]). Accordingly, Plaintiff's cross-motion is granted.
Defendants, Travelers' Property also contends that Great American cannot raise the defense of late notice of claim because Great American failed to specifically disclaim on this grounds and sent a disclaimer based on D B's lack of operation at the time of an incident seven months after the notice of claim. Travelers' Property did not bring a motion for summary judgment, but informally asked this Court to grant summary judgment of its own discretion. This Court declines to do so, but finds that Travelers' Property has submitted sufficient evidence of failure to disclaim on the grounds of delayed notice to create a triable issue and avoid summary judgment ( In re Great American Ins. Co. (Tomaino), 293 AD2d 944 [3rd Dept 2002]; Nova Cas. Co. v. Charbonneau Roofing Inc., 185 AD2d 490).
Therefore, this Court denies the motion by Defendants, Great American Insurance Company of New York and D B Building, Inc, for summary judgment and grants Plaintiff's cross-motion for partial summary judgment, dismissing Great American's affirmative defense that Plaintiff gave insufficient notice of claim.
All papers, including this Decision and Order, are being returned to the attorney for the . The signing of this Decision and Order shall not constitute entry or filing under CPLR § 2220. Counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.
SO ORDERED!