| Long Is. Light. Co. v Allianz Underwriters Ins. Co. |
| 2013 NY Slip Op 02009 [104 AD3d 581] |
| March 26, 2013 |
| Appellate Division, First Department |
| Long Island Lighting Company, Plaintiff, and KeySpanCorporation, Appellant-Respondent, v Allianz Underwriters Insurance Companyet al., Defendants, American Re-Insurance Company et al., Respondents-Appellants, andNorthern Assurance Company of American, Respondent. |
—[*1] Landman Corsi Ballaine & Ford, P.C., New York (Michael L. Gioia of counsel), forAmerican Re-Insurance Company, respondent-appellant/respondent. Boutin and Altieri, P.L.L.C., Carmel (John L. Altieri of counsel), for CenturyIndemnity, respondent-appellant/respondent. White and Williams LLP, New York (Robert F. Walsh of counsel),respondent.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered February2, 2012, which, insofar as appealed from as limited by the briefs, upon renewal, grantedso much of defendants-respondents insurers' motions for summary judgment as sought adeclaration that defendant-respondents have no duty to defend or indemnify plaintiffsregarding environmental damage claims on the Bay Shore manufactured gas plant site,due to plaintiffs' failure to provide timely notice under the respective policies, but deniedthe motions as to the Hempstead site, unanimously modified, on the law, to deny themotions as to the Bay Shore site, vacate the declaration, and otherwise affirmed, withoutcosts.
The record evidence establishes, as a matter of law, that Long Island LightingCompany failed to satisfy its obligation under the subject policies to give notice upon thehappening of an occurrence "reasonably likely" to reach the excess insurance policiesinvolving environmental contamination at both the Bay Shore and Hempsteadmanufactured gas plant sites (see Long Is. Light. Co. v Allianz Underwriters Ins. Co., 24AD3d 172 [1st Dept 2005], appeal dismissed 6 NY3d 844 [2006]).[*2]
However, summary judgment declaring thatdefendant insurers have no duty to defend or indemnify plaintiffs as a result of this latenotice is premature because issues of fact remain as to whether defendants waived theirright to disclaim coverage based on late notice. Defendant insurers' reservation of rights,which specifically reserved, among other things, the defense of late notice, and soughtadditional information, did not preclude the finding of waiver due to failure to timelyissue a disclaimer. Here, additional information was provided such that a jury coulddetermine that the insurers possessed sufficient knowledge to require that they meet theobligation to issue a written notice of disclaimer on the ground of late notice as soon asreasonably possible after first learning of the accident or of grounds for disclaimer ofliability (see Matter of Firemen's Fund Ins. Co. of Newark v Hopkins, 88 NY2d836, 837 [1996]). Contrary to the finding of the court below, issues of fact exist as towhether sufficient information was provided to insurers in 1995 such that theirsubsequent failure to issue a notice of disclaimer on the grounds of late notice, untilraising it as a defense in their answers filed in 1997, resulted in a waiver (cf. Estee Lauder Inc. v OneBeaconIns. Group, LLC, 62 AD3d 33, 35 [1st Dept 2009]). Concur—Gonzalez,P.J., Sweeny, Renwick and Manzanet-Daniels, Román JJ. [Prior Case History:2012 NY Slip Op 30258(U).]