National Union Fire Insurance v. Hermitage Insurance ( 1998 )

—In an action for a judgment declaring that the defendant Hermitage Insurance Company is obligated to defend and indemnify the plaintiff St. Christopher’s-Jennie Clarkson Child Care Servicés, Inc., in an underlying personal injury action entitled Cappello v St. Christopher’s-Jennie Clarkson Child Care Services, Inc., pending in the Supreme Court, Westchester County under Index No. 12090/95, and to reimburse the plaintiff National Union Fire Insurance Company of Pittsburgh, Pa., for expenses incurred in the defense of the underlying personal injury action, the defendant Hermitage Insurance Company appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Donovan, J.), entered October 8, 1997, which granted the plaintiffs’ motion for summary judgment, denied its cross motion for summary judgment, and declared that it is obligated to defend and indemnify the plaintiff St. Christopher’s-Jennie Clarkson Child Care Services, Inc., in the underlying personal injury action and to reimburse the plaintiff National Union Fire Insurance Company of Pittsburgh, Pa., for expenses incurred in the defense of the underlying personal injury action.

Ordered that the order and judgment is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and it is declared that the defendant Hermitage Insurance Company is not obligated to defend and indemnify the plaintiff St. Christopher’s-Jennie Clarkson Child Care Services, Inc., in the underlying personal injury action, or to reimburse the plaintiff National Union Fire Insurance Company of Pittsburgh, Pa., for expenses incurred in the defense of the underlying personal injury action.

Under the circumstances of this case, we find that the defendant Hermitage Insurance Company (hereinafter Hermitage) declined coverage in a timely manner (see, Matter of Firemen’s Fund Ins. Co. v Hopkins, 88 NY2d 836, 837; Pennsylvania Millers Mut. Ins. Co. v Sorrentino, 238 AD2d 491, 492; Mount Vernon Fire Ins. Co. v Gatesington Equities, 204 AD2d 419, 420-421).

In light of our finding, Hermitage does not have to reimburse the plaintiff National Union Fire Insurance Company of Pittsburgh, Pa., for any expenses which it may have incurred in defending the plaintiff St. Christopher’s-Jennie Clarkson Child Care Services in the underlying personal injury action (see, e.g., Allstate Ins. Co. v Mende, 176 AD2d 907, 908). Rosenblatt, J. P., Ritter, Copertino and McGinity, JJ., concur.