| SP & S Assoc., LLC v Insurance Co. of Greater N.Y. |
| 2011 NY Slip Op 00415 [80 AD3d 529] |
| January 25, 2011 |
| Appellate Division, First Department |
| SP& S Associates, LLC, Respondent, v Insurance Company ofGreater New York, Also Known as Greater New York Mutual Insurance Company,Appellant. |
—[*1] Rose & Rose, New York (Dean Dreiblatt of counsel), for respondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 18, 2010, whichdenied defendant's motion to dismiss a declaratory judgment action seeking to hold defendantresponsible for defending and indemnifying plaintiff insured in a personal injury action, unanimouslyreversed, on the law and the facts, without costs, and the motion granted to the extent that it is declaredthat defendant has no duty to defend or indemnify plaintiff in the underlying action.
The subject insurance policy's notice of claim condition precedent to coverage required the insuredcorporate plaintiff to notify defendant insurer of an occurrence which might result in a claim "as soon aspracticable." The receipt of service of a personal injury summons with notice by the Secretary of State,as plaintiff's designated agent (Limited Liability Company Law §§ 301, 303), constitutedreceipt by the plaintiff itself (Cedeno v Wimbledon Bldg. Corp., 207 AD2d 297, 298 [1994],lv dismissed 84 NY2d 978 [1994]). The fact that plaintiff did not actually receive a copy of thesummons with notice, due to its failure to keep its address current with the Secretary of State, does notexcuse its noncompliance with the notice requirements of the policy. As plaintiff did not provide noticeof the action to its insurer until receipt of a motion for default judgment some 5½ months afterservice of process, defendant was entitled to disclaim coverage (Briggs Ave. LLC v Insurance Corp. of Hannover, 11 NY3d 377[2008]; 26 Warren Corp. v Aetna Cas. & Sur. Co., 253 AD2d 375, 376 [1998]).Concur—Saxe, J.P., Moskowitz, Richter, Manzanet-Daniels and RomÁn, JJ.