Opinion
2012-12-19
Juan SIERRA, plaintiff, v. 4401 SUNSET PARK, LLC, et al., defendants third-party plaintiffs-respondents; LM Interiors Contracting, LLC, third-party defendant-respondent, Scottsdale Insurance Company, third-party defendant-appellant (and a second third-party action).
Goldberg Segalla, LLP, Albany, N.Y. (Matthew S. Lerner of counsel), for third-party defendant-appellant. Margaret G. Klein & Associates, New York, N.Y. (Brill & Associates, P.C. [Corey Reichardt], of counsel), for defendants third-party plaintiffs-respondents.
Goldberg Segalla, LLP, Albany, N.Y. (Matthew S. Lerner of counsel), for third-party defendant-appellant. Margaret G. Klein & Associates, New York, N.Y. (Brill & Associates, P.C. [Corey Reichardt], of counsel), for defendants third-party plaintiffs-respondents.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Joel M. Simon of counsel), for third-party defendant-respondent.
WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, and a third-party action, inter alia, for a judgment declaring that the third-party defendant Scottsdale Insurance Company is obligated to defend and indemnify the defendants third-party plaintiffs in the main action, the third-party defendant Scottsdale Insurance Company appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated June 23, 2011, as granted that branch of the motion of the defendants third-party plaintiffs which was for summary judgment declaring that it is obligated to defend and indemnify the defendants third-party plaintiffs in the main action, denied its cross motion, among other things, for summary judgment declaring that it is not obligated to defend and indemnify the defendants third-party plaintiffs in the main action, and denied its separate motion, among other things, for summary judgment declaring that it is not obligated to defend and indemnify the third-party defendant LM Interiors Contracting, LLC, for claims arising out of the main action.
ORDERED that the appeal from so much of the order as denied the separate motion of the third-party defendant Scottsdale Insurance Company, among other things, for summary judgment declaring that it is not obligated to defend and indemnify the third-party defendant LM Interiors Contracting, LLC, for claims arising out of the main action is dismissed as withdrawn pursuant to a letter dated May 10, 2012; and it is further,
ORDERED that the order is affirmed insofar as reviewed, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the third-party defendant Scottsdale Insurance Company is obligated to defend and indemnify the defendants third-party plaintiffs in the main action; and it is further,
ORDERED that one bill of costs is awarded to the defendants third-party plaintiffs.
The third-party defendant Scottsdale Insurance Company (hereinafter Scottsdale) issued a certificate of insurance to the defendants third-party plaintiffs, 4401 Sunset Park, LLC (hereinafter 4401), and Sierra Realty Company (hereinafter Sierra Realty), in accordance with a construction agreement in connection with a project in which several apartments in the subject building were to be renovated. On August 18, 2008, the plaintiff in the main action, Juan Sierra, allegedly was injured while working in the subject building.
On January 6, 2009, the primary insurer of 4401 and Sierra Realty, Greater New York Insurance Company (hereinafter GNY), wrote to Scottsdale, tendering a claim for the defense and indemnification of the underlying action on behalf of 4401 and Sierra Realty. On February 2, 2009, Scottsdale responded with a letter to GNY disclaiming coverage and rejecting the tender, on the grounds that the GNY letter constituted late notice of the accident and did not comply with terms of the Scottsdale policy. Scottsdale did not send this letter to 4401 or Sierra Realty. Sierra Realty and 4401 moved, inter alia, for summary judgment declaring that Scottsdale was obligated to defend and indemnify them in the main action. Scottsdale cross-moved, inter alia, for summary judgment declaring that it was not obligated to defend and indemnify 4401 and Sierra Realty in the main action.
Where a primary insurer, in this case GNY, tenders a claim for a defense and indemnification to an insurer, in this case Scottsdale, which issued a certificate of insurance to the parties, indicating that they are additional insureds, that insurer must comply with the disclaimer requirements of Insurance Law § 3420(d)(2) by providing written notice of disclaimer of coverage to the additional insureds. The fact that the tendering insurer provided untimely notice of the accident “does not excuse the insurer's unreasonable delay in disclaiming coverage” ( 233 E. 17th St., LLC v. L.G.B. Dev., Inc., 78 A.D.3d 930, 932, 913 N.Y.S.2d 110;see Admiral Ins. Co. v. State Farm Fire & Cas. Co., 86 A.D.3d 486, 488, 927 N.Y.S.2d 629;J.T. Magen v. Hartford Fire Ins. Co., 64 A.D.3d 266, 269, 879 N.Y.S.2d 100;Bovis Lend Lease LMB, Inc. v. Royal Surplus Lines Ins. Co., 27 A.D.3d 84, 87–88, 806 N.Y.S.2d 53;AIU Ins. Co. v. Investors Ins. Co., 17 A.D.3d 259, 260, 793 N.Y.S.2d 412). The failure of Scottsdale to provide written notice of disclaimer to 4401 and Sierra Realty rendered the disclaimer of coverage ineffective against them ( see Maughn v. RLI Ins. Co., 68 A.D.3d 1067, 1068, 892 N.Y.S.2d 172). Under the circumstances of this case, GNY was not the real party in interest, such that the notice of disclaimer to GNY would be rendered effective as against 4401 and Sierra Realty ( cf. Cincinnati Ins. Cos. v. Sirius Am. Ins. Co., 51 A.D.3d 1365, 856 N.Y.S.2d 800;Excelsior Ins. Co. v. Antretter Contr. Corp., 262 A.D.2d 124, 693 N.Y.S.2d 100).
Scottsdale's remaining contention has been rendered academic in light of our determination.
Since the third-party action is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that Scottsdale is obligated to defend and indemnify 4401 and Sierra Realty in the main action ( see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670,appeal dismissed371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163,cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).