| Integrated Constr. Servs., Inc. v Scottsdale Ins. Co. |
| 2011 NY Slip Op 02628 [82 AD3d 1160] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Integrated Construction Services, Inc.,Respondent, v Scottsdale Insurance Company, Appellant. |
—[*1] Daniel S. Perlman, New York, N.Y., for respondent.
In an action for a judgment declaring, inter alia, that the defendant, Scottsdale InsuranceCompany, is obligated to defend and indemnify the plaintiff, Integrated Construction Services,Inc., in an underlying personal injury action entitled Bonaerge v Leighton HouseCondominium, pending in the Supreme Court, Bronx County, under index No. 306511/09,the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court,Suffolk County (Molia, J.), dated March 22, 2010, as denied those branches of its motion whichwere pursuant to CPLR 3211 (a) (1) and (7) to dismiss so much of the complaint as sought ajudgment declaring that it is obligated to defend and indemnify the plaintiff in the underlyingpersonal injury action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, Integrated Construction Services, Inc. (hereinafter Integrated), a constructioncompany, purchased a commercial general liability insurance policy (hereinafter the CGLinsurance policy) from the defendant, Scottsdale Insurance Company (hereinafter Scottsdale), fora period that began in 2006 and ended in 2007. Starting in February 2009, Integrated receivedfour identical letters from an attorney's office stating that it represented a worker who allegedlyhad been injured while working at one of its work sites in 2006, during the time of coverage. Thefour letters were dated February 7, 2009, April 28, 2009, May 26, 2009, and July 10, 2009,respectively. However, these letters listed the accident site as "356 88th Street, New York, NewYork," whereas the correct address was 360 East 88th Street, New York, New York, and theletters did not specifically state the employer of the injured worker. In a letter dated July 7, 2009,Integrated was informed by a claims service of its duty to defend and indemnify the owner andmanaging agent of the 360 East 88th Street property in an underlying personal injury actionconcerning the injured worker. This letter also listed the correct work site address and stated thatthe injured worker had been employed by one of Integrated's subcontractors, Rockledge ScaffoldCorp. A claim was subsequently made by Integrated on August 24, 2009, for Scottsdale to defendand indemnify it. In a letter dated September 23, 2009, Scottsdale denied coverage on the basisthat Integrated had failed to notify it "as soon as practicable" pursuant to the CGL insurancepolicy. Thereafter, Integrated commenced this declaratory judgment action against Scottsdale,seeking to obligate Scottsdale to defend and indemnify [*2]it.
According to Integrated's complaint and its president's affidavit, its president believed theletters from the attorney's office were sent in error, as they listed an incorrect address andidentified an injured worker with whom the president was not familiar. Nevertheless, thepresident had attempted to contact, via telephone, the attorney who sent the letters, with nosuccess, and also sent at least two letters to this attorney, stating that he thought the letters hadbeen sent to Integrated in error. Thereafter, upon receiving the July 7, 2009, claims service letter,he undertook an investigation and a claim was made by Integrated to Scottsdale on August 24,2009.
Scottsdale subsequently moved, inter alia, to dismiss the complaint pursuant to CPLR 3211(a) (1) on the basis of documentary evidence, and pursuant to CPLR 3211 (a) (7) for failure tostate a cause of action. The Supreme Court, among other things, denied those branches of themotion which were to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), andScottsdale appeals. We affirm the order insofar as appealed from.
"In determining a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford thepleading a liberal construction, accept the facts as alleged in the complaint as true, accord theplaintiff the benefit of every favorable inference, and determine only whether the facts as allegedfit within any cognizable legal theory" (Feldman v Finkelstein & Partners, LLP, 76 AD3d703, 704 [2010] [citations omitted]; see Sokol v Leader, 74 AD3d 1180, 1180-1181[2010]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Additionally, "[a] court may freelyconsider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Well vYeshiva Rambam, 300 AD2d 580, 580 [2002]). The Supreme Court properly denied thatbranch of Scottsdale's motion which was to dismiss the complaint pursuant to CPLR 3211 (a)(7), as Integrated stated a cause of action that it was entitled to a judgment declaring thatScottsdale is obligated to defend and indemnify it in the underlying action pursuant to the CGLinsurance policy and, contrary to Scottsdale's contentions, Integrated has adequately pleaded thatany delay in giving Scottsdale notice was reasonable under the circumstances (see Seneca Ins.Co. v W.S. Distrib., Inc., 40 AD3d 1068 [2007]; see also U.S. Underwriters Ins. Co. vCarson, 49 AD3d 1061 [2008]; Genova v Regal Mar. Indus., 309 AD2d 733, 734[2003]).
Further, the Supreme Court properly denied that branch of Scottsdale's motion which waspursuant to CPLR 3211 (a) (1) to dismiss the complaint based on a defense founded upondocumentary evidence. A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may begranted only if the documentary evidence submitted utterly refutes the factual allegations of thecomplaint and conclusively establishes a defense to the claims as a matter of law (seeGranada Condominium III Assn. v Palomino, 78 AD3d 996, 996 [2010]; Fontanetta vJohn Doe 1, 73 AD3d 78, 83 [2010]; Goshen v Mutual Life Ins. Co. of N.Y., 98NY2d 314, 326 [2002]). "In order for evidence to qualify as 'documentary,' it must beunambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino,78 AD3d at 996-997, quoting Fontanetta v John Doe 1, 73 AD3d at 84-86). "Neitheraffidavits, deposition testimony, nor letters are considered 'documentary evidence' within theintendment of CPLR 3211 (a) (1)" (Granada Condominium III Assn. v Palomino, 78AD3d at 997). The letters from the attorney and claims service relied upon by Scottsdale do notconstitute "documentary evidence" for the purposes of CPLR 3211 (a) (1). Angiolillo, J.P.,Florio, Belen and Miller, JJ., concur.