December 7, 1998
Appeal from the Supreme Court, Westchester County (Rudolph, J.).
Ordered that the appeal from the order entered March 27, 1997, is dismissed, as that order was superseded by the order entered December 5, 1997, made upon reargument; and it is further,
Ordered that the order entered December 5, 1997, is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Westchester County, for entry of a judgment declaring that the defendant has no duty to defend or indemnify the plaintiff in the action entitled Powers v. IFR Pension Plan; and it is further,
Ordered that the defendant is awarded one bill of costs.
The plaintiff (hereinafter IFR) purchased a "claims-made" employee benefits liability policy from the defendant, United States Fidelity and Guaranty Company (hereinafter Fidelity), effective January 1, 1994, to January 1, 1995. The policy provides coverage for damages caused by an "employee benefits incident" only if the claim for damages is made within the policy period and the "`employee benefits incident' did not occur before the Retroactive Date, if any, shown in the Declarations". The declarations page of the policy does not specify a retroactive date.
One of IFR's former employees commenced an action against it on or about April 26, 1994, during the policy period. However, the incident upon which the claim was based occurred prior to the effective date of the policy. IFR notified Fidelity of the claim in early January 1995. After Fidelity disclaimed coverage, IFR commenced this action seeking, inter alia, declaratory relief.
The Supreme Court properly granted Fidelity's motion for summary judgment. Contrary to IFR's contention, the terms of the policy are clear and unambiguous. Because the policy does not specify a retroactive date, there is no retroactive coverage for incidents that occurred before the effective date of the policy ( see, 11 NYCRR 73.1 [b]).
In any event, IFR failed to provide notice of the claim "as soon as practicable" and also failed to "immediately" forward a copy of the summons and complaint to Fidelity as required by the policy. IFR's eight-month delay in notifying Fidelity was a breach of its contractual obligations and vitiated any coverage afforded by the policy. IFR did not meet its burden of demonstrating that the delay was excusable ( see, Winstead v. Uniondale Union Free School Dist., 201 A.D.2d 721).
We note that since this is, in part, a declaratory judgment action, a judgment should be entered granting declaratory relief in favor of Fidelity ( see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
Rosenblatt, J. P., Miller, Altman and Friedmann, JJ., concur.