American Guarantee & Liability Insurance Co. v. Illinois Union Insurance Co. , 153 A.D.3d 1175 ( 2017 )

American Guar. & Liab. Ins. Co. v Illinois Union Ins. Co. (2017 NY Slip Op 06616)

American Guar. & Liab. Ins. Co. v Illinois Union Ins. Co.

2017 NY Slip Op 06616

Decided on September 26, 2017

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 September 26, 2017
Friedman, J.P., Richter, Moskowitz, Gesmer, JJ.

4496 652232/11

[*1]American Guarantee & Liability Insurance Company, Plaintiff-Appellant,

v

Illinois Union Insurance Company, Defendant-Respondent, NY A to Z Construction Group Inc., Defendant.

Coughlin Duffy LLP, New York (Steven D. Cantarutti of counsel), for appellant.

London Fischer LLP, New York (James Walsh of counsel), for respondent.

Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or about July 19, 2016, which granted defendant Illinois Union Insurance Company's motion for summary judgment dismissing the complaint as against it and denied plaintiff's cross motion for summary judgment declaring that Illinois is obligated to defend and indemnify defendant NY A to Z Construction Group Inc. in the underlying personal injury action, unanimously modified, on the law, to declare that Illinois is not obligated to defend and indemnify NY A to Z in the underlying personal injury action, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

The motion court correctly determined that NY A to Z failed to give Illinois, its primary insurer, timely notice of the accident giving rise to the claim, thereby vitiating Illinois's obligation to provide coverage (see e.g. Paramount Ins. Co. v Rosedale Gardens, 293 AD2d 235 [1st Dept 2002]). NY A to Z's proffered reason for the delay in notification is unavailing (see Tower Ins. Co. of N.Y. v Lin Hsin Long Co., 50 AD3d 305, 307 [1st Dept 2008]). However, rather than dismissing the complaint as against Illinois, the court should have declared in Illinois's favor (Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 26, 2017

CLERK