| Avery & Avery, P.C. v American Ins. Co. |
| 2008 NY Slip Op 04451 [51 AD3d 695] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Avery & Avery, P.C., Respondent-Appellant, v AmericanInsurance Company, Appellant-Respondent. |
—[*1] Annette G. Hasapidis, South Salem, N.Y., for respondent-appellant.
In an action for a judgment declaring that the defendant is obligated to defend and indemnifythe plaintiff in an underlying action entitled Verrone v Maryard Realty, Inc., pending inthe Supreme Court, Kings County, under index No. 13056/05, the defendant appeals from somuch of an order of the Supreme Court, Kings County (Johnson, J.), dated October 26, 2006, asdenied its motion for summary judgment declaring that it is not so obligated, and the plaintiffcross-appeals from so much of the same order as denied its cross motion for summary judgment.
Ordered that the order is reversed insofar as appealed from, on the law, the defendant'smotion for summary judgment is granted, and the matter is remitted to the Supreme Court, KingsCounty, for the entry of a judgment declaring that the defendant is not obligated to defend andindemnify the plaintiff in the underlying action entitled Verrone v Maryard Realty, Inc.,pending in the Supreme Court, Kings County, under index No. 13056/05; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The plaintiff leases the premises where the accident occurred from the landowner, anout-of-possession landlord. The subject premises are used as an office building. On March 2,2004, [*2]Basile Verrone, a client of the plaintiff's subtenant, fellas he descended the steps from the second floor to the first floor of the subject premises. Theplaintiff's principal was present in the building at the time of the accident, and Verrone saidsomething to her about the "bannister not going down to the bottom." Verrone was removed fromthe building by paramedics. A few weeks later, the plaintiff's employee learned that Verrone haddied. The plaintiff's principal further acknowledged that she was aware that Verrone's nephewcame to the premises to take photographs of the scene of the accident and that his family was"exploring the possibility of a claim."
On or about July 2, 2004, an attorney retained to pursue a claim on behalf of Verrone's estatewith respect to the accident notified the landowner of the subject accident and advised thelandowner to notify its insurance carrier. On or about August 10, 2004, the plaintiff's insurancebroker forwarded a notice of the claim to the defendant, the plaintiff's insurance carrier.
On August 17, 2004, an insurance adjuster for the defendant telephoned the plaintiff'sprincipal. In his affidavit, the adjuster claimed that the plaintiff's principal informed him thatVerrone's nephew came to the premises to take pictures a few days after the accident. Theplaintiff's principal does not deny this assertion.
On or about September 10, 2004, the defendant disclaimed coverage on the ground that it didnot receive timely notice of the claim.
In this action for a judgment declaring that the defendant is obligated to defend andindemnify the plaintiff in an action brought by the administrator of Verrone's estate to recoverdamages, inter alia, for personal injuries and wrongful death, the defendant moved for summaryjudgment on the ground that the plaintiff failed to notify it of the claim as soon as practicable.The plaintiff cross-moved for summary judgment, claiming it had a reasonable belief innonliability. The Supreme Court denied both the motion and the cross motion, finding theexistence of issues of fact. We reverse the order insofar as appealed from by the defendant.
Where, as in this case, the insurance policy requires that notice of the claim be given to thecarrier as soon as practicable, compliance with that provision is a condition precedent tocoverage. If the insured did not know about the accident, or had a "reasonable belief innonliability," a delay in giving notice will be excused (White v City of New York, 81NY2d 955, 957 [1993]). However, the insured has the burden of showing the reasonableness ofthe excuse (id.). The issue is whether the insured had a reasonable basis for a belief thatno claim would be asserted against it (see SSBSS Realty Corp. v Public Serv. Mut. Ins. Co.,253 AD2d 583 [1998]; accord Genova v Regal Mar. Indus., 309 AD2d 733 [2003]).
Here, the defendant established, as a matter of law, that the plaintiff did not have areasonable belief that no claim would be asserted against it. The plaintiff had possession of thebuilding, knew of the accident and that injuries were sustained on the day the accident occurred,and knew, within days of the accident, that Verrone's family was contemplating a claim. Thedelay of more than four months in notifying the defendant of the claim was unreasonable as amatter of law (see Evangelos Car Wash,Inc. v Utica First Ins. Co., 45 AD3d 727 [2007]). In opposition, the plaintiff failed toraise a triable issue of fact.
The plaintiff asserts that the underlying action has no merit. However, at issue here is notwhether the plaintiff reasonably believed that any claim brought by Verrone or on his behalf[*3]would lack merit. Rather, the issue is whether the plaintiffreasonably believed that no claim would be asserted against it (see SSBSS Realty Corp. vPublic Serv. Mut. Ins. Co., 253 AD2d 583 [1998]; accord Genova v Regal Mar. Indus.,309 AD2d 733 [2003]). Accordingly, the defendant properly disclaimed coverage, and theSupreme Court should have granted the defendant's motion for summary judgment. Since this isa declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for theentry of a judgment declaring that the defendant is not obligated to defend and indemnify theplaintiff in the underlying action (see Lanza v Wagner, 11 NY2d 317, 334 [1962],appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Miller, J.P.,Dillon, McCarthy and Chambers, JJ., concur.