| Key Bank U.S.A., N.A. v Interboro Ins. Co. |
| 2009 NY Slip Op 06120 [65 AD3d 521] |
| August 4, 2009 |
| Appellate Division, Second Department |
| Key Bank U.S.A., N.A., Respondent, v InterboroInsurance Company et al., Appellants. |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Marcia K.Raicus of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the defendants are required toindemnify the plaintiff for a payment it made in connection with the settlement of a personalinjury action entitled Baldi v Key Bank U.S.A., in the Supreme Court, Suffolk County,index No. 16737/03, the defendants appeal from an order of the Supreme Court, Nassau County(Brandveen, J.), dated February 3, 2009, which denied their motion for summary judgment.
Ordered that the order is reversed, on the law, with costs, the defendants' motion forsummary judgment is granted, and the matter is remitted to the Supreme Court, Nassau County,for entry of a judgment, inter alia, declaring that the defendants are not required to indemnify theplaintiff for a payment it made in connection with the settlement of the underlying action entitledBaldi v Key Bank U.S.A., in the Supreme Court, Suffolk County, index No. 16737/03.
On May 7, 2003, the defendants' insured, Kimberly M. Guessford, was involved in anaccident in which Vincent P. Baldi was injured. At the time, Guessford was driving anautomobile leased to Michael Malliet and owned by Key Bank U.S.A., N.A., the plaintiff in thisaction (hereinafter the plaintiff). Thereafter, sometime in 2003, Baldi commenced a personalinjury action entitled Baldi v Key Bank U.S.A. (hereinafter the underlying action) in theSupreme Court, Suffolk County, against, among others, Guessford and the plaintiff.[*2]
By letter dated August 17, 2006, Guessford's counsel inthe underlying action notified the defendants herein that Guessford was involved in theunderlying action and asked whether she had insurance under the policy the defendants hadissued to her covering a different vehicle that was not involved in the accident. The defendants,by letter dated August 30, 2006, disclaimed coverage on the grounds that they were not timelynotified of the claim, as required by the policy, and because the policy excluded coverage for avehicle regularly used by the insured other than the "covered auto" under the policy. Thedefendants alleged that Guessford was injured while driving a vehicle she regularly used, thatwas not the "covered auto" under the policy.
According to the plaintiff, the underlying action was settled in September 2006 for the sumof $300,000, $200,000 of which was paid by the plaintiff. Thereafter, by summons andcomplaint filed August 18, 2008, the plaintiff commenced this action seeking, inter alia, adeclaration that the defendants were required to indemnify it for the payment it made towards thesettlement of the underlying action. The defendants, in an answer sworn to on October 1, 2008,essentially denied all the material allegations but "admitted," inter alia, that they had disclaimedcoverage by way of the aforementioned August 30, 2006 letter.
Thereafter, the defendants moved for summary judgment on the ground, inter alia, that theplaintiff forfeited any right to coverage by breaching the policy provision requiring promptnotice of any claim. The Supreme Court denied the motion. We reverse.
The defendants demonstrated that the first notice they received of the accident was by theletter dated August 17, 2006, and that they disclaimed coverage in the letter dated August 30,2006. They further demonstrated that the first notice they received of the plaintiff's claim was thesummons and complaint filed August 18, 2008, which they appear to have received onSeptember 5, 2008, and that they disclaimed coverage in their answer. Neither the August 17,2006 letter nor the plaintiff's summons and complaint in this action set forth any excuse for thedelay in notifying the defendants of the May 7, 2003 accident.
This was sufficient to make a prima facie showing that the delay in notifying the defendantsof the claim, whether by way of the 2006 letter or the 2008 summons and complaint, wasunreasonable as a matter of law and breached the condition precedent in the policy requiringtimely notification. Since the plaintiff did not offer any excuse for the delay, the defendants'timely disclaimer based on the delay in notifying it of the accident and/or claim vitiated anyobligation they had under the policy they had with Guessford (see Evangelos Car Wash, Inc. v Utica FirstIns. Co., 45 AD3d 727 [2007]; Gershow Recycling Corp. v Transcontinental Ins. Co., 22 AD3d460, 461 [2005]; City of New Yorkv St. Paul Fire & Mar. Ins. Co., 21 AD3d 978 [2005]; American Mfrs. Mut. Ins. Co.v CMA Enters., 246 AD2d 373 [1998]). Therefore, the defendants' motion should have beengranted (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The plaintiff's remaining contentions either are without merit, are improperly raised for thefirst time on appeal, or need not be addressed in light of this determination.
Since this is, in part, a declaratory judgment action, the matter must be remitted to theSupreme Court, Nassau County, for the entry of an appropriate judgment in accordance herewith(see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74[1962], cert denied 371 US 901 [1962]). Rivera, J.P., Florio, Belen and Austin, JJ.,concur.