| Hermitage Ins. Co. v JDG Lexington Corp. |
| 2012 NY Slip Op 06632 [99 AD3d 428] |
| October 4, 2012 |
| Appellate Division, First Department |
| Hermitage Insurance Company, Appellant, v JDGLexington Corp. et al., Respondents. |
—[*1] Warren L. Cohen, Tuckahoe, for JDG Lexington Corp., respondent. Friedman, Hirschen & Miller, LLP, Albany (Carolyn B. George of counsel), for Barbara Postand Alfred Sniffen, respondents.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered December 6,2011, which denied plaintiff Hermitage Insurance Company's motion for summary judgmentdeclaring that it had no duty to defend and indemnify defendant JDG Lexington Corp. in anunderlying personal injury action, unanimously reversed, on the law, without costs, the motiongranted, and it is declared that plaintiff has no such duty.
Notwithstanding the fact that the insured may have mistakenly believed, based on the leaseof its commercial tenant, that it was not responsible for the area where the plaintiff in theunderlying action fell, the insured had a duty to report the possibility of a claim as soon aspracticable (see Paramount Ins. Co. v Rosedale Gardens, 293 AD2d 235, 239-240 [1stDept 2002]).
Moreover, it is undisputed that the insured did not undertake any investigation of theincident, or make inquiry regarding its alleged belief that it was not responsible for the areawhere the accident occurred. Thus, it could not have formed a reasonable belief of non-liability(see Great Canal Realty Corp. v SenecaIns. Co., Inc., 5 NY3d 742, 743-744 [2005]; Tower Ins. Co. of N.Y. v Jaison John Realty Corp., 60 AD3d 418,418-419 [1st Dept 2009]).
A party may not seek to avoid the consequences of its failure to give notice within areasonable period of time by asserting that it had a reasonable, good faith belief that the accidentwould not result in liability where, as here, the insured's principals were aware of the accident, itinvolved a tenant who slipped and fell on the insured's premises and the tenant had to betransported by ambulance (see TowerIns. Co. of N.Y. v Lin Hsin Long Co., 50 AD3d 305, 307-308 [1st Dept 2008]).
Similarly, because the injured party failed to give any notice to plaintiff, she must rely on[*2]the sufficiency of the notice provided by the insured which, asdiscussed above, was untimely (Lin Hsin Long, 50 AD3d at 308-309).
We have considered the parties' remaining arguments and find them unavailing.Concur—Gonzalez, P.J., Saxe, DeGrasse, Freedman and Román, JJ.