| Board of Mgrs. of the 1235 Park Condominium v Clermont SpecialtyMgrs., Ltd. |
| 2009 NY Slip Op 09148 [68 AD3d 496] |
| December 10, 2009 |
| Appellate Division, First Department |
| Board of Managers of the 1235 Park Condominium et al.,Appellants, v Clermont Specialty Managers, Ltd., et al.,Respondents. |
—[*1] White Fleischner & Fino, LLP, New York (Nancy Davis Lyness of counsel), forrespondents.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 10, 2008,which, upon the parties' motions for summary judgment, declared that defendants (collectively,the insurer) have no duty to defend and indemnify plaintiffs (collectively, the insured) in anunderlying action for personal injuries sustained by a worker on the insured's premises,unanimously affirmed, without costs.
The worker was taken to the hospital by ambulance after falling off a ladder while installinga water tank on the roof of the insured's building; the insured immediately learned of theaccident; and the insured's notice of claim was admittedly untimely. The insured argues that theuntimeliness should be excused because it had a reasonable, good faith belief that no claimwould be asserted against it, based on a phone call it made to the worker's employer on the dayof the accident in which it was informed that the worker was not admitted to the hospital, did notsustain any serious injuries, and was expected to return to work the next day. Given the nature ofthe work that the worker was performing and the insured's knowledge that the worker had fallenoff a ladder and been taken to the hospital by ambulance, this single phone call on the day of theaccident was not an adequate inquiry into the circumstances of the accident and its outcome, and,as a matter of law, could not have caused the insured to reasonably believe that there was noreasonable possibility of the policy's involvement (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742,744 [2005]; Paramount Ins. Co. v Rosedale Gardens, 293 AD2d 235, 239-240 [2002];SSBSS Realty Corp. v Public Serv. Mut. Ins. Co., 253 AD2d 583, 585 [1998]). Nor isthere merit to the insured's argument that the recent amendment to Insurance Law § 3420(a) adding paragraph (5) (L 2008, ch 388, § 2 [eff Jan. 17, 2009]), requiring a showing ofprejudice before an insurer denies coverage on the ground of untimely notice, appliesretroactively to the instant 2003 policy; the amendment expressly applies to policies issued on orafter its effective date (id. at § 8; see Safeco Ins. Co. of Am. v Discover Prop.& Cas. Ins. Co., 2009 WL 436329, *5 n 3, 2009 US Dist LEXIS 18735, *14 n 3 [SD NY2009]). Concur—Gonzalez, P.J., Friedman, McGuire, DeGrasse and Manzanet-Daniels,JJ.