South W. Mar. & Gen. Ins. Co. v. Falls Lake Natl. Ins. Co. ( 2022 )

South W. Mar. & Gen. Ins. Co. v Falls Lake Natl. Ins. Co. (2022 NY Slip Op 07527)

South W. Mar. & Gen. Ins. Co. v Falls Lake Natl. Ins. Co.

2022 NY Slip Op 07527

Decided on December 29, 2022

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 and Entered: December 29, 2022
Before: Manzanet-Daniels, J.P., Oing, Singh, Moulton, Mendez, JJ.

Index No. 150713/21 Appeal No. 17016 Case No. 2022-00212

[*1]South West Marine and General Insurance Company, et al., Plaintiffs-Appellants,

v

Falls Lake National Insurance Company, Defendant-Respondent.

Smith Mazure, P.C., New York (Joel M. Simon of counsel), for appellants.

Miranda Slone Sklarin Verveniotis, Mineola (Steven Verveniotis of counsel), for respondent.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered December 30, 2021, which granted defendant's CPLR 3211(a)(1) motion to dismiss and declared that defendant has no duty to defend or indemnify plaintiffs in the underlying personal injury action, and denied plaintiffs' motion for summary judgment, unanimously affirmed, with costs.

The language in defendant insurer's policy, which excludes coverage for bodily injury to any employee of any insured, pertains to claims against plaintiff Teller Owner, LLC in the underlying action (see Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 AD2d 337, 340 [1st Dept 2003]).

Plaintiffs have not provided a valid excuse for their failure to use reasonable diligence in providing defendant with their tender, which they mailed to an incorrect address and which defendant never received (see American Tr. Ins. Co. v Brown, 14 NY3d 809, 811 [2010]). Accordingly, this declaratory action was plaintiff Teller's initial tender, to which defendant timely disclaimed based on the employee exclusion in its motion to dismiss.

We have considered plaintiffs' remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 29, 2022