Opinion
No. 2010-04672.
March 29, 2011.
In an action to recover damages for personal injuries, the defendant/third-party plaintiff appeals from an order of the Supreme Court, Rockland County (Garvey, J.), dated February 25, 2010, which denied its motion for summary judgment on its third-party cause of action for reimbursement of its defense expenses in the main action, and granted the third-party defendant's cross motion for summary judgment dismissing the third-party complaint.
Goldstein Metzger, LLP, Poughkeepsie, N.Y. (Paul J. Goldstein of counsel), for defendant third-party plaintiff-appellant.
Colliau Elenius Murphy Carluccio Keener Morrow, New York, N.Y. (Dean J. Vigliano of counsel), for third-party defendant-respondent.
Before: Mastro, J.P., Dillon, Balkin and Miller, JJ.
Ordered that the order is affirmed, with costs.
The third-party defendant made a prima facie showing of its entitlement to judgment as a matter of law, and the defendant/ third-party plaintiff failed to raise a triable issue of fact in opposition. Contrary to the contention of the defendant/third-party plaintiff, the delay of the third-party defendant in issuing the disclaimer of coverage in this case was not unreasonable. The third-party defendant presented ample evidence demonstrating, as a matter of law, that the delay was reasonably related to a prompt, diligent, and necessary investigation it conducted into the question of whether the third-party plaintiff unduly and inexcusably delayed in providing it with notice of the lawsuit, in violation of the applicable insurance policy ( see Magistro v Buttered Bagel, Inc., 79 AD3d 822, 825; Matter of GMAC Ins. Co. v Jones, 61 AD3d 1358, 1360-1361; Tully Constr. Co., Inc. v TIG Ins. Co., 43 AD3d 1150, 1153; Acc Packing Co., Inc. v Campbell Solberg Assoc., Inc., 41 AD3d 12, 14). Since the third-party defendant promptly disclaimed coverage on the ground of late notice only eight days after the conclusion of its investigation, the Supreme Court properly determined that the disclaimer was valid ( see Tully Constr. Co., Inc. v TIG Ins. Co., 43 AD3d at 1153; Acc Packing Co., Inc. v Campbell Solberg Assoc., Inc., 41 AD3d at 14).