Brother Jimmy's BBQ, Inc. v. American International Group, Inc. , 945 N.Y.S.2d 550 ( 2012 )

— Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered May 17, 2011, which granted plaintiffs’ cross motion for summary judgment to declare that defendant insurer Illinois National Insurance Company (defendant), in its capacity as plaintiffs’ excess carrier, was required to defend and indemnify plaintiffs in the underlying personal injury action once the primary insurance was exhausted, and denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The motion court correctly determined that defendant-appellant Illinois National Insurance Company’s disclaimer of coverage was untimely. Regardless of the timeliness of plaintiffs’ notice of claim, the ground alleged as support for disclaimer was clear from the face of the notice of claim and other documents submitted to Illinois National, making the 38-day delay before issuance of the notice of disclaimer unreasonable as a matter of law under Insurance Law § 3420 (d) (see Matter of New York Cent. Mut. Fire Ins. Co. v Aguirre, 7 NY3d 772, 774 [2006]; e.g. George Campbell Painting v National Union Fire Ins. Co. of Pittsburgh, PA, 92 AD3d 104 [2012]).

We have considered the remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Sweeny, DeGrasse, Freedman and Richter, JJ. [Prior Case History: 2011 NY Slip Op 31295(U).]