Bauerschmidt & Sons, Inc. v Nova Cas. Co.

2012 NY Slip Op 00740 [91 AD3d 892]

Jnury 31, 2012

Appellate Division, Second Department

As corrected through Wednesday, February 29, 2012

Bauerschmidt & Sons, Inc., Respondent, v Nova CasualtyCompany, Appellant.

—[*1]Melito & Adolfsen, P.C., New York, N.Y. (Ignatius John Melito of counsel), forappellant.

Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Robert N. Zausmer of counsel),for respondent.

In an action, inter alia, for a judgment declaring that the defendant is obligated to defend andindemnify the plaintiff in an underlying action entitled Fiore v Bauerschmidt & Sons,Inc., pending in Supreme Court, Kings County, under index No. 3509/09, the defendantappeals from a judgment of the Supreme Court, Queens County (Kitzes, J.), entered March 9,2011, which, after a nonjury trial, is in favor of the plaintiff and against it declaring that it mustdefend and indemnify the plaintiff in the underlying action.

Ordered that the judgment is affirmed, with costs.

On an appeal from a judgment entered after a nonjury trial, the power of this Court " 'toreview the evidence is as broad as that of the trial court, bearing in mind . . . thatdue regard must be given to the decision of the Trial Judge who was in a position to assess theevidence and the credibility of the witnesses' " (Tornheim v Kohn, 31 AD3d 748, 748 [2006], quotingUniversal Leasing Servs. v Flushing Hae Kwan Rest., 169 AD2d 829, 830 [1991]; seeNorthern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499[1983]; Huner v State of New York,90 AD3d 992 [2011]; A. MontilliPlumbing & Heating Corp. v Valentino, 90 AD3d 961 [2011]). Applying this standardhere, the record supports the Supreme Court's determination that the plaintiff's delay in notifyingthe defendant of the underlying incident was reasonably based on a good faith belief ofnonliability (see Tri-State Consumer Ins. Co. v Yaskin, 304 AD2d 560, 561 [2003];Eveready Ins. Co. v Robinson, 300 AD2d 436, 437 [2002]; Abbey RichmondAmbulance Serv. v Northbrook Prop. & Cas. Ins. Co., 281 AD2d 501, 501-502 [2001]). Wedecline to disturb the Supreme Court's determination.

The defendant's remaining contentions are without merit. Rivera, J.P., Eng, Lott and Sgroi,JJ., concur.