Opinion
2514/2005.
July 9, 2009.
Cohen Warren, P.C., Smithtown, NY, Attorney for Plaintiff.
Insurance Agency of Long Island, Inc., Lustig Brown, LLP, Orangeburg, NY, Attorney for Defendant Hometown.
Indemnity Insurance Company, Marshall, Conway, Wright Bradley, P.C., New York, NY, Attorney for Defendant Philadelphia.
Upon the following papers numbered 1 to 37 read on these motions and cross motion for summary judgment; Notice of Motion and supporting papers, 1-15; 16-18; Notice of Cross Motion and supporting papers, 19 — 22; Answering Affidavits and supporting papers, 23 — 24; 25; Replying Affidavits and supporting papers, 26 — 29; 30 — 36; 37; Other defendant PIIC's memorandum of law; defendant Hometown's memorandum of law; plaintiff's memorandum of law.
This is an action (i) for judgment declaring that defendant Philadelphia Indemnity insurance Company ("PIIC") is obligated to defend and indemnify its insured, Board of Managers of Sagamore Hills Condominium ("Sagamore"), in an action pending in this Court entitled "William DeCicco, as Co-Administrator of the Estate of Connie DeCicco v. Board of Managers of Sagamore Hills Condominium" (Suffolk County index number 2150/2004) ("the underlying action"), and (ii) seeking judgment over and additional damages against defendant Hometown Insurance Agency of Long Island, Inc. ("Hometown"), the broker of record with respect to the subject insurance policy, based on its alleged failure to timely notify the insurer, PIIC, of the alleged incident and the commencement of the underlying action.
On March 19, 2003, Connie DeCicco allegedly was injured when she slipped and fell on ice at Sagamore's property in Port Jefferson Station, New York. At the time of the accident, Sagamore had in effect general liability coverage under a commercial lines policy issued by PIIC. The policy provided, in relevant part, as follows:
SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS
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2. Duties In The Event Of Occurrence, Offense, Claim Or Suit
a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include:
(1) How, when and where the "occurrence" or offense took place;
(2) The names and addresses of any injured persons and witnesses; and
(3) The nature and location of any injury or damage arising out of the "occurrence" or offense.
b. If a claim is made or "suit" is brought against any insured, you must:
(1) Immediately record the specifics of the claim or "suit" and the date received; and
(2) Notify us as soon as practicable.
You must see to it that we receive written notice of the claim or "suit" as soon as practicable.
* * *
SECTION V — DEFINITIONS
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3. "Bodily injury" means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.
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13. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.
* * *
18. "Suit" means a civil proceeding in which damages because of "bodily injury," "property damage" or "personal and advertising injury" to which this insurance applies are alleged * * *.
Although Sagamore was aware of the accident, it did not notify PIIC.
Subsequently, by letter dated January 14, 2004, DeCicco's attorney advised Sagamore that he had been retained in connection with the accident. Although Sagamore promptly transmitted the attorney's letter to the broker, it again did not notify the insurer. On January 23, 2004. DeCicco commenced the underlying action. When Sagamore received service of the summons and complaint on February 9, 2004, it forwarded a copy to the broker but, again, not to the insurer. It appears that Hometown did not deliver the summons and complaint to PIIC until April 15, 2004. By letter dated May 5, 2004, PIIC disclaimed coverage based on Sagamore's failure to provide timely notice of the accident and of the underlying action in accordance with the terms and conditions of the subject policy. This action followed.
Sagamore alleges three causes of action in its complaint. The first is against PIIC and seeks judgment declaring that PIIC is obligated to defend and indemnify it in the underlying action. The second and third, which are pleaded against Hometown, are for (respectively) negligence and breach of contract and are based on Hometown's own alleged failure to promptly notify PIIC of the accident and of the underlying action.
According to Georgia Reese, Sagamore's president, she was notified of the accident the same day it occurred. Later that day, she inspected the area where she had been told the accident occurred. She observed that the roadway was plowed and that only small patches of slush remained. She described DeCicco as an ill, elderly resident who had a history of accidents but who had never previously asserted a claim against Sagamore. She also stated that DeCicco had never contacted any of Sagamore's board members regarding her injury and that it was her belief that Sagamore would have been apprised in the event that DeCicco was contemplating a lawsuit because DeCicco was a longtime resident and was friendly with a number of board members.
PIIC now moves for summary judgment, alleging that Sagamore's failure to provide timely notice of the accident and of the underlying action relieves PIIC of any obligation to defend or indemnify Sagamore in the underlying action. Sagamore, for its part, contends that it had no reason to believe that a claim would be asserted by DeCicco at any time prior to receipt of her attorney's January 14, 2004 letter, at which time it promptly notified the broker of record.
Where, as here, an insurance policy requires an insured to provide prompt notice of any accidental loss, such notice must be given within a reasonable time in view of all the circumstances (see, Deso v. London Lancashire Indem. Co. of Am., 3 NY2d 127; Paul Devs. v. Maryland Cas. Ins. Co., 28 AD3d 443 [2nd Dept., 2006]). The duty to give the insurer notice arises when, from the information available relative to the accident, the insured could glean a reasonable possibility of the policy's involvement (see, Figueroa v. Utica Natl. Ins. Group, 16 AD3d 616 [2nd Dept., 2005], lv denied 5 NY3d 709; Paramount Ins. Co. v. Rosedale Gardens, 293 AD2d 235 [1st Dept., 2002]). Providing the required notice is a condition precedent to coverage and, hence, absent a valid excuse, failure to satisfy the notice requirement vitiates the policy, even if no prejudice is shown (see, Argo Corp. v. Greater N.Y. Mut. Ins. Co., 4 NY3d 332). While a reasonable belief in nonliability may excuse or explain a delay in giving notice, the insured has the burden of showing the reasonableness of such an excuse (White v. City of New York, 81 NY2d 955).
Here, PIIC established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive notice of the accident until April 15, 2004, more than a year after the March 19, 2003 accident (see, e.g., Felix v. Pinewood Bldrs., 30 AD3d 459 [2nd Dept., 2006]; Paul Devs. v. Maryland Cas. Ins. Co., 28 AD3d 443 [2nd Dept., 2006]). Sagamore, in response, failed to raise a triable issue of fact as to an excuse or mitigating factor justifying its delay. To the contrary, based on the deposition testimony of Georgia Reese and the minutes of Sagamore's March 24, 2003 meeting, it is evident that Sagamore was aware of the accident when it occurred and that it was also aware that DeCicco had been taken from the accident scene by ambulance to a hospital where she was treated for a broken hip (see, Tower Ins. Co. of N.Y. v. Lin Hsin Long Co., 50 AD3d 305 [1st Dept., 2008]; Rondale Bldg. Corp. v. Nationwide Prop. Cas. Ins. Co., 1 AD3d 584 [2nd Dept., 2003]; Platsky v. Government Empls. Ins. Co., 181 AD2d 764 [2nd Dept., 1992]). It does not appear, moreover, that the injured party and the insured had any kind of familial relationship as might otherwise lead Sagamore to believe that it would be notified if a claim were going to be made (cf., Argentina v. Otsego Mut. Fire Ins. Co., 86 NY2d 748 [1995]). The Court, therefore, rejects Sagamore's claim that its delay in notifying PIIC was somehow excusable. Whether Sagamore may have been unaware that notice provided to its broker was insufficient is, of course, no excuse at all (see, 2130 Williamsbridge Corp. v. interstate Indem. Co., 55 AD3d 371 [1st Dept., 2008]; Gershow Recycling Corp. v. Transcontinental Ins. Co., 22 AD3d 460 [2nd Dept., 2005]). Accordingly, PIIC's motion is granted to the extent hereinafter indicated and Sagamore's cross motion, to the extent it seeks summary judgment in its favor and against PIIC, is correspondingly denied. The Court directs that PIIC submit a proposed judgment declaring that it is not obligated to defend or indemnify Sagamore in the underlying action.
As for Hometown's motion and the remaining branch of Sagamore's cross motion, these are denied as untimely, having been made more than 120 days after the filing of the note of issue without any showing of good cause for the delay (see, CPLR § 3212 [a]; Brill v. City of New York, 2 NY3d 648).
Finally, the Court directs that the cause of action as to which summary judgment was granted is hereby severed and that the remaining claims shall continue ( see, CPLR 3212 [e] [1]).
Accordingly, it is
ORDERED that the motion by defendant Philadelphia Indemnity Insurance Company (Mot. Seq. #004) for an order pursuant to CPLR § 3212 granting summary judgment declaring that it is not obligated to defend or indemnify its insured, Board of Managers of Sagamore Hills Condominium, in the underlying personal injury action entitled "Connie DeCicco, plaintiff, against Board of Managers at Sagamore Hills Condominium, defendant" (Suffolk County Clerk's Index No. 04-2150), and dismissing the complaint against it, the motion (incorrectly denominated as a cross motion) by defendant Hometown Insurance Agency of Long Island, Inc. (Mot. Seq. #005) for an order pursuant to CPLR § 3212 "declaring the rights of the parties" and dismissing the complaint against it, and the cross motion by the plaintiff (Mot. Seq. #006) for an order granting summary judgment in its favor and against defendants Philadelphia Indemnity Insurance Company and Hometown Insurance Agency of Long Island, Inc. for the relief demanded in the complaint, are hereby consolidated for purposes of this determination; and it is further.
ORDERED that the motion by defendant Philadelphia Indemnity Insurance Company is granted to the extent of granting summary judgment declaring that it is not obligated to defend or indemnify its insured in the underlying action, and is otherwise denied; and it is further
ORDERED that the motion by defendant Hometown Insurance Agency of Long Island, Inc. is denied; and it is further
ORDERED that the cross motion by the plaintiff is denied.