         11-1174-cv
         United National Insurance Company v. Scottsdale Insurance Company

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 15th day of February, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER,
 8                         Circuit Judges,
 9                LEE H. ROSENTHAL
10                         District Judge.*
11
12
13       UNITED NATIONAL INSURANCE COMPANY,
14
15                                     Plaintiff-Appellant,
16
17                      -v.-                                                11-1174-cv
18
19       SCOTTSDALE INSURANCE COMPANY,
20
21                                     Defendant-Appellee.
22
23
24       FOR APPELLANT:                STEVEN VERVENIOTIS (Michael A. Miranda,
25                                     on the brief), Miranda Sambursky Slone
26                                     Sklarin Verveniotis LLP, Mineola, NY.
27
28       FOR APPELLEE:                 STEPHEN D. STRAUS, Traub Lieberman Straus
29                                     & Shrewsberry LLP, Hawthorne, NY.
30

                *
               Judge Lee H. Rosenthal, of the United States District Court
         for the Southern District of Texas, sitting by designation.
1         Appeal from the United States District Court for the
2    Eastern District of New York (Block, J.)
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the United States District

6    Court for the Eastern District of New York be AFFIRMED.

7        Plaintiff-Appellant United National Insurance Company

8    appeals from the district court’s (Block, J.) March 7, 2011

9    Memorandum and Order granting Scottdale’s motion for summary

10   judgment pursuant to Federal Rule of Civil Procedure 56.    We

11   assume the parties’ familiarity with the underlying facts

12   and procedural history.

13       We review de novo a district court’s grant of summary

14   judgment, with the view that “[s]ummary judgment is

15   appropriate only if the moving party shows that there are no

16   genuine issues of material fact and that the moving party is

17   entitled to judgment as a matter of law.”   Miller v. Wolpoff

18   & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).

19       Upon such review, we affirm for substantially the same

20   reasons set forth in the district court’s thorough

21   Memorandum and Order.

22       Although we do not decide the issue, we question

23   whether an insurer, like United National, can seek, in a

24   declaratory judgment action, coverage for its insured where

                                  2
1    it explicitly disclaims seeking any benefit for itself.

2    Even if, however, United National can properly bring this

3    action we agree with the district court that the plain

4    language of Scottsdale’s policy does not require Scottsdale

5    to defend and indemnify 164 Atlantic and Two Trees.   See

6    Jefferson v. Sinclair Refining Co., 10 N.Y.2d 422, 426-27

7    (1961); York Restoration Corp. v. Solty’s Constr., Inc., 79

8    A.D.3d 861, 862 (2d Dep’t 2010).

9        Finally, we conclude that Scottsdale was not estopped

10   from disclaiming coverage under New York Insurance Law

11   § 3420(d) because that provision does not require timely

12   disclaimer of coverage “when the policy on which the claim

13   rests does not, by its terms, cover the incident giving rise

14   to liability.”   Handelsman v. Sea Ins. Co. Ltd., 85 N.Y.2d

15   96, 99 (1994).   Because we agree with the district court

16   that Scottsdale’s policy did not provide coverage for 164

17   Atlantic and Two Trees, we find section 3420(d)

18   inapplicable.

19       For the foregoing reasons, the judgment of the district

20   court is hereby AFFIRMED.

21
22                               FOR THE COURT:
23                               Catherine O’Hagan Wolfe, Clerk
24
25




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