| Tower Ins. Co. of N.Y. v Jaison John Realty Corp. |
| 2009 NY Slip Op 01538 [60 AD3d 418] |
| March 3, 2009 |
| Appellate Division, First Department |
| Tower Insurance Company of New York,Appellant-Respondent, v Jaison John Realty Corp. et al., Appellants, and Elisabeth Dias,Respondent. |
—[*1] Quadrino Schwartz, Garden City (Brad A. Schlossberg of counsel), for appellants.
Order and judgment (one paper), Supreme Court, New York County (Jane S. Solomon, J.),entered June 23, 2008, which, in a declaratory judgment involving whether plaintiff insurer(Tower) is obligated to defend and indemnify defendants apartment building owner and propertymanager (collectively John) in an underlying action brought by defendant tenant (Dias) forpersonal injuries sustained when she fell down a stairway in the building, upon motions forsummary judgment, declared that Tower is not obligated to defend and indemnify John and thatDias gave Tower timely and otherwise valid notice of the accident in accordance with InsuranceLaw § 3420 (a) (3), unanimously modified, on the law, Tower's motion as to Dias granted,Dias's cross motion denied, and it is declared that Dias is not entitled to proceed directly againstTower, and otherwise affirmed, without costs.
It appears that later in the day of the accident, September 17, 2006, John was on the premisesand saw that the stairway handrail had been removed. Then, while still on the premises, Johnreceived a phone call from the police informing him that a person named Dias had fallen downthe stairs and that the handrail had been removed. John did not undertake to obtain a copy of thepolice report, which would have informed him that a tenant named Dias was taken from thebuilding by ambulance after falling down the stairs due to a loose handrail, and that the policehad removed a portion of the handrail. John asserts that he saw Dias the day after the accidentand spoke to her and that she appeared fine and did not mention the accident, and that she calledhim several days after the accident to complain about noise and hot water and again did notmention the accident, but he never asked her what, if anything, had happened or whether she wasinjured. John first gave Tower written notice of the accident on or about February 5, 2007,almost five months after the accident, when he forwarded the summons and complaint in theunderlying action. These circumstances, particularly the missing handrail, establish that John'sbelief that Dias had not been injured and would not make a claim was unreasonable, and thus did[*2]not excuse the otherwise unreasonable five-month delay ingiving notice of the accident (see GreatCanal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005] [whether and towhat extent insured has inquired into circumstances of accident may be relevant on issue ofreasonableness]; Paramount Ins. Co. v Rosedale Gardens, 293 AD2d 235, 239-240[2002]; SSBSS Realty Corp. v Public Serv. Mut. Ins. Co., 253 AD2d 583 [1998]).
Concerning the declaration in favor of Dias and against Tower, the December 20, 2006 letterfrom Dias's counsel to John advised John to notify his insurer of the accident, and that if counseldid not hear from John's insurer or legal representative within 20 days, Dias would commence anaction. A month later, on or about January 23, 2007, having received no response and stillunaware of the identity of John's insurer, Dias commenced suit against John, and, less than twoweeks later, Tower received notice of the accident when John forwarded a copy of the summonsand complaint. This is insufficient under Insurance Law § 3420 (a) (3). Dias neverattempted to ascertain the identity of John's insurer and merely relied on correspondence to John(Tower Ins. Co. of N.Y. v Lin HsinLong Co., 50 AD3d 305 [2008]). We have considered the parties' remaining contentionsfor affirmative relief and find them unavailing. Concur—Andrias, J.P., Friedman,Buckley, Catterson and Acosta, JJ. [See 20 Misc 3d 1108(A), 2008 NY Slip Op51284(U).]