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Lavandier v. Landmark Insurance Company

Appellate Division of the Supreme Court of New York, First Department
Feb 21, 2006
26 A.D.3d 264 (N.Y. App. Div. 2006)

Summary

holding that the negligence claim against an insurance broker accrued "not at the time of the alleged breach of duty but, subsequently, at the time of injury, i.e., in June 2001 when [the insurer] disclaimed [coverage]."

Summary of this case from M.S.S. Constr. Corp. v. Century Sur. Co.

Opinion

7908N.

February 21, 2006.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered January 21, 2005, which, to the extent appealed from, granted plaintiffs' motion to serve an amended complaint, unanimously affirmed, without costs.

Lustig Brown, LLP, New York (Ellen Nimaroff of counsel), for appellant.

Fitzgerald Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for respondents.

Before: Tom, J.P., Mazzarelli, Andrias, Nardelli and Malone, JJ., concur.


The proposed amendments, alleging that defendant insurance broker Sobel Affiliates, Inc. (Sobel) breached its contract with the insureds and was negligent in failing to timely forward notice of the subject claims to the insureds' carrier, Landmark Insurance Company, were properly permitted. Although Sobel contends that the causes asserted in the proposed amendments are time-barred, it failed to meet its burden conclusively to demonstrate that affirmative defense ( see CPLR 3018 [b]; Martin v. Edwards Labs., Div. of Am. Hosp. Supply Corp., 60 NY2d 417, 428; and see Viacom Intl. v. Midtown Realty Co., 193 AD2d 45, 52). The record, which is unclear as to the date when Sobel first received notice of the underlying claims, affords no basis to conclude, as a matter of law, when the breach of contract claim against Sobel accrued ( see National Life Ins. Co. v. Hall Co. of N.Y., 67 NY2d 1021, 1023). Consequently, it does not permit a conclusion as to whether that claim is time-barred. Particularly in view of the circumstance that the proposed negligence claim accrued not at the time of the alleged breach of duty but, subsequently, at the time of injury ( see Kronos, Inc. v. AVX Corp., 81 NY2d 90, 94), i.e., in June 2001 when Landmark disclaimed, that claim too was properly sustained as against the defense of untimeliness.

We have considered Sobel's remaining claims and find them unavailing.


Summaries of

Lavandier v. Landmark Insurance Company

Appellate Division of the Supreme Court of New York, First Department
Feb 21, 2006
26 A.D.3d 264 (N.Y. App. Div. 2006)

holding that the negligence claim against an insurance broker accrued "not at the time of the alleged breach of duty but, subsequently, at the time of injury, i.e., in June 2001 when [the insurer] disclaimed [coverage]."

Summary of this case from M.S.S. Constr. Corp. v. Century Sur. Co.

holding that "negligence claim [against insurance broker] accrued not at the time of the alleged breach of duty but, subsequently, at the time of injury, i.e., . . . when [the insurance company] disclaimed"

Summary of this case from Cunningham v. Insurance Company of North America
Case details for

Lavandier v. Landmark Insurance Company

Case Details

Full title:JOEL LAVANDIER, Formerly Known as JOEL ROSARIO, et al., Respondents, v…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 21, 2006

Citations

26 A.D.3d 264 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 1267
810 N.Y.S.2d 45

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