Great Canal Realty Corp. v. Seneca Ins. Co., Ins., 5 NY3d 742, 743โ44 (2005) ; Savik, Murray & Aurora Const. Mgt. Co., LLC v. ITT Hartford Ins. Group, 86 AD3d 490, 492 (1st Dep't 2011). See Wilson v. Quaranta, 18 AD3d 324, 325 (1st Dep't 2005). The underlying claims against Cohen are predicated on his alleged failure to secure adequate collateral for the investments.
Great Canal Realty Corp. v. Seneca Ins. Co., Ins., 5 N.Y.3d 742, 743-44 (2005); Savik, Murray & Aurora Const. Mgt. Co., LLC v. ITT Hartford Ins. Group, 86 A.D.3d 490, 492 (1st Dep't 2011). See Wilson v. Quaranta, 18 A.D.3d 324, 325 (1st Dep't 2005).
It is well settled that a policy requirement that an insured provide notice of any occurrence to the insurance company within a reasonable time is considered a condition precedent to the insurer's obligation to defend or indemnify the insured (see, e.g., Seneca Ins. Co. v W.S.Distrib., Inc., 40 AD3d 1068 [2d Dept 2007]; C.C.R. Realty of Dutchess,Inc. v New York Cent. Mut. Fire Ins. Co., 1 AD3d 304 [2d Dept 2003]; White v City of New York, 81 NY2d 955). An insurer is not required to show prejudice in order to sustain a coverage disclaimer based on late notice (Argo Corp. v Greater New York Mut. Ins. Co.,4 NY3d 332, 339; Wilson v Quaranta, 18 AD3d 324 [1st Dept 2005];DiGuglielmo v Travelers Prop. Cas., 6 AD3d 344, 346 [1st Dept 2004], lv denied 3 NY3f 608 [2004]; Paramount Ins. Co. v Rosedale Gardens, Inc., 293 AD2d 235, 241 [1st Dept 202]). "There may be circumstances, such as lack of knowledge or reasonable belief in non-liability, that will excuse or explain delay in giving notice, but the insured has the burden of showing the reasonableness of such excuse" ( Seneca Ins. Co., supra, 40 AD3d at 1069, quoting White, supra, 81 NY2d at 957-958).
A reasonable belief in non-liability may excuse an insured's failure to give timely notice ( see Sayed v. Macari, 296 AD2d 396 [2nd Dept 2002]), and "the insured has the burden of showing the reasonableness of such excuse" ( White v. City of New York, 81 NY2d at 957; see also Duffin v. Colonial Indem. Ins. Co., 270 AD2d 942 [4th Dept 2000]). Where there is no excuse offered or where the excuse is unsupported by credible facts, the court may determine reasonableness as a matter of law ( see Wilson v. Quaranta, 18 AD3d 324 [1st Dept 2005] [delay unreasonable as a matter of law]; SSBSS Realty Corp. v. Public Serv. Mut. Ins. Co., 253 AD2d 583, supra [delay unreasonable as a matter of law]; Power Auth. of the State of NY v. Westinghouse Elec. Corp., 117 AD2d 336, 339-40 [1st Dept 1986] ["where there is no excuse for the delay and mitigating considerations are absent, the issue may be disposed of as a matter of law in advance of trial."
A cause of action for violation of the Judiciary Law statute related to attorney misconduct is not duplicative of causes of action alleging legal malpractice, since the statutory claim requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct ( Burke, Albright, Harter Rzepka, LLP v Sills, 83 AD3d 1413; Moormann v Perini Hoerger, 65 AD3d 1106). The third-party action for contribution or indemnification was also properly dismissed as not viable, since third-party defendants did not share in defendant's responsibility for plaintiff's alleged loss, not having represented her as defendant's successor until after the case had been dismissed and two motions to restore had been denied ( see Rivas v Raymond Schwartzberg Assoc, PLLC, 52 AD3d 401; Wilson v Quaranta, 18 AD3d 324).
However, plaintiff's breach of contract claim, arising from the same facts and alleging similar damages, should have been dismissed as duplicative ( see InKine Pharm. Co. v Coleman, 305 AD2d 151, 152). The third-party action for contribution or indemnification was not viable since third-party defendants did not share in defendant's responsibility for plaintiff's alleged loss, not having represented him as defendant's successor until after expiration of the limitations period on the personal injury claim ( see Wilson v Quaranta, 18 AD3d 324, 326). We reject defendant's contention that third-party defendants, first authorized by the bankruptcy court to represent plaintiff's estate after the limitations period had run, were responsible for seeking an order of retention nunc pro tunc assuming arguendo that they could have done so ( see In re Piecuil, 145 BR 777, 783 [WD NY 1992]; cf.
With respect to the claim for contribution as it relates to the loss of Crystal Nelson's derivative cause of action against the City and NYCHA, since Sieradzki was not retained by plaintiffs until after the applicable statute of limitations expired, his conduct did not contribute to the loss of that claim. There is, therefore, no basis for requiring him to absorb any liability that may ultimately be imposed on Roth for such loss ( see Wilson v. Quaranta, 18 AD3d 324, 326 [2005] ). Accordingly, Roth's third-party claim for contribution, to the extent it is predicated upon the derivative claim of Crystal Nelson, is dismissed.
The malpractice action against Brooklyn Hospital was dismissed for failure to timely serve said defendant. Again, plaintiffs' knowledge of the dismissals was alone sufficient to create the reasonable expectation of a malpractice claim by Leadbeater ( see Wilson v Quaranta, 18 AD3d 324 [1st Dept 2005] [for 8/1/2 months before giving notice of malpractice claim, attorney could not have had a reasonable belief that plaintiff would not or could not assert a malpractice claim against him based on his untimely filing of a notice of claim against he City that set forth the incorrect place of injury]; see also Sirignano v Chicago Ins. Co., 192 F.Supp.2d 199 [S.D.N.Y. 2002] [client's case was dismissed as abandoned in January 1999 because plaintiff attorney had done nothing to restore the case to the calendar within the 1-year period allowed by CPLR 3404 and plaintiff's knowledge of that dismissal was alone sufficient to create the reasonable expectation of a malpractice claim]; Ingalsbe v Chicago Ins. Co., 270 A.D.2d 684, 704 N.Y.S.2d 697, 698 [3rd Dept 2000] [holding that the insured "had a reasonable basis upon which to report a potential claim to his malpractice carrier when he knew that he had missed the statute of limitation on his client's claim]).
Ringel v Blue Ridge Ins. Co., 293 AD2d 460, 462 (2nd Dept 2002) (citations omitted). See also Wilson v Quaranta, 18 AD3d 324, 326 (1st Dept 2005) (no merit to argument that notice of the claim subsequently given to insurer by plaintiff's attorney was timely under Insurance Law ยง 3420). Therefore, the court shall grant the cross-motion of Travelers Indemnity Company for summary judgment dismissing the third-party declaratory judgment action (Index No.: 590248/05) on the grounds that defendant/third-party plaintiff Chelsea Tomato failed to provide timely notice in compliance with the terms of the policy.