Opinion
2011-12-20
TOWER INSURANCE COMPANY OF NEW YORK, Plaintiff–Appellant, v. NHT OWNERS LLC, et al., Defendants–Respondents,Robert Riccio, Defendant.
Law Offices of Max W. Gershweir, New York (Joseph S. Wiener of counsel), for appellant. Rothkrug, Rothkrug & Spector, LLP, Great Neck (Simon H. Rothkrug of counsel), for respondents.
Law Offices of Max W. Gershweir, New York (Joseph S. Wiener of counsel), for appellant. Rothkrug, Rothkrug & Spector, LLP, Great Neck (Simon H. Rothkrug of counsel), for respondents.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered June 24, 2010, which, in this action for a declaratory judgment, denied plaintiff insurer's motion for summary judgment and declared that it was obligated to defend and indemnify defendants-respondents NHT Owners LLC and Mallory Management Corp. in the underlying action against them, and granted said defendants-respondents' cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
A liability policy that requires an insured to provide notice of an occurrence to its insurer “as soon as practicable” obligates the insured to give notice of the occurrence within a reasonable period of time ( Great Canal Realty Corp. v. Seneca Ins. Co., 5 N.Y.3d 742, 743, 800 N.Y.S.2d 521, 833 N.E.2d 1196 [2005] ). However, we need not reach the question of whether, under all the circumstances, the insureds' notice of claim, 62 days after the occurrence, was timely, where they conducted an inquiry into the underlying accident, and believed there was no liability ( see Security Mut. Ins. Co. of N.Y. v. Acker–Fitzsimons Corp., 31 N.Y.2d 436, 441, 340 N.Y.S.2d 902, 293 N.E.2d 76 [1972] ) because the court properly held that the notice of disclaimer, after a 33–day period, was untimely as a matter of law ( see Ins. Law § 3420[d]; First Fin. Ins. Co. v. Jetco Contr. Corp., 1 N.Y.3d 64, 68–69, 769 N.Y.S.2d 459, 801 N.E.2d 835 [2003]; see e.g. West 16th St. Tenants Corp. v. Public Serv. Mut. Ins. Co., 290 A.D.2d 278, 736 N.Y.S.2d 34 [2002], lv. denied 98 N.Y.2d 605, 746 N.Y.S.2d 279, 773 N.E.2d 1017 [2002] ). The insurer's sole ground for the disclaimer of coverage was the insured's delay in notifying it of the occurrence, which was readily apparent at the time of the notice of claim ( see First Fin. Ins. Co., 1 N.Y.3d at 69, 769 N.Y.S.2d 459, 801 N.E.2d 835).
We have considered the insurer's remaining contentions and find them without merit.