Opinion
17016 Index No. 150713/21 Case No. 2022–00212
12-29-2022
SOUTH WEST MARINE AND GENERAL INSURANCE COMPANY, et al., Plaintiffs–Appellants, v. FALLS LAKE NATIONAL INSURANCE COMPANY, Defendant–Respondent.
Smith Mazure, P.C., New York (Joel M. Simon of counsel), for appellants. Miranda Slone Sklarin Verveniotis, Mineola (Steven Verveniotis of counsel), for respondent.
Smith Mazure, P.C., New York (Joel M. Simon of counsel), for appellants.
Miranda Slone Sklarin Verveniotis, Mineola (Steven Verveniotis of counsel), for respondent.
Manzanet–Daniels, J.P., Oing, Singh, Moulton, Mendez, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered December 30, 2021, which granted defendant's CPLR 3211(a)(1) motion to dismiss and declared that defendant has no duty to defend or indemnify plaintiffs in the underlying personal injury action, and denied plaintiffs’ motion for summary judgment, unanimously affirmed, with costs.
The language in defendant insurer's policy, which excludes coverage for bodily injury to any employee of any insured, pertains to claims against plaintiff Teller Owner, LLC in the underlying action (see Moleon v. Kreisler Borg Florman Gen. Constr. Co., 304 A.D.2d 337, 340, 758 N.Y.S.2d 621 [1st Dept. 2003] ). Plaintiffs have not provided a valid excuse for their failure to use reasonable diligence in providing defendant with their tender, which they mailed to an incorrect address and which defendant never received (see American Tr. Ins. Co. v. Brown, 14 N.Y.3d 809, 811, 899 N.Y.S.2d 751, 926 N.E.2d 255 [2010] ). Accordingly, this declaratory action was plaintiff Teller's initial tender, to which defendant timely disclaimed based on the employee exclusion in its motion to dismiss.
We have considered plaintiffs’ remaining arguments and find them unavailing.