Travelers Indemnity Co. v. Orange & Rockland Utilities, Inc. ( 2015 )

Travelers Indem. Co. v Orange & Rockland Utils., Inc. (2015 NY Slip Op 00292)

Travelers Indem. Co. v Orange & Rockland Utils., Inc.

2015 NY Slip Op 00292

Decided on January 8, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 8, 2015
Sweeny, J.P., Andrias, Richter, Clark, JJ.

603601/02 ——13923 13922 13921 13920 13919 13918

[*1] The Travelers Indemnity Company, Plaintiff-Respondent,

v

Orange and Rockland Utilities, Inc., et al., Defendant-Appellant, John Doe Corporations 1-100, Defendants.

Proskauer Rose LLP, New York (John E. Failla of counsel), for appellant.

Steptoe & Johnson LLP, Washington, DC (Roger E. Warin of the bar of the District of Colombia, admitted pro hac vice, of counsel), for respondent.

Orders, Supreme Court, New York County (Eileen Bransten, J.), entered July 18, 2013, which granted plaintiff Travelers Indemnity Company's (Travelers) motion for summary judgment seeking a declaration that it is not required to provide coverage to defendant Orange and Rockland Utilities (ORU), based on ORU's failure to provide timely notice of the occurrences for which it sought coverage, and denied ORU's motions for partial summary judgment seeking a declaration that Travelers breached its duty to defend ORU with respect to the clean up of hazardous waste sites, unanimously modified, on the law, to declare that Travelers is not required to provide coverage to ORU and has no duty to defend ORU with respect to the hazardous waste sites at issue, and otherwise affirmed, without costs.

As this Court has already noted in connection with another site owned by defendant, defendant did not give timely notice under the policies, which was a requirement for coverage (see 73 AD3d 576 [1st Dept 2010], lv dismissed 15 NY3d 834 [2010]). Defendant's argument that it never had actual notice of any pollution was insufficient. The record abounds with documents demonstrating that pollution likely existed at each of the sites considered herein. These documents, along with repeated interactions with both state and federal regulators, were sufficient to place defendant on notice. Moreover, defendant's willful failure to investigate, i.e., its apparent strategy of waiting to be directed by the appropriate regulatory agencies to investigate the sites and remediate pollution, despite the overwhelming evidence of potential [*2]contamination, negates its contention of a lack of awareness of the pollution (id. at 576-577).

We have considered the remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 8, 2015

CLERK