                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 18, 2016                   521572
________________________________

KRAEMER BUILDING CORP.,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

SCOTTSDALE INSURANCE COMPANY,
                    Appellant.
________________________________


Calendar Date:   January 11, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


      Carroll McNulty & Kull, LLC, New York City (Ann Odelson of
counsel), for appellant.

     Craig T. Bumgarner, Carmel, for respondent.

                             __________


Devine, J.

      Appeal from an order of the Supreme Court (Schick, J.),
entered May 29, 2015 in Sullivan County, which, among other
things, granted plaintiff's motion for summary judgment declaring
that defendant has a duty to defend and/or indemnify plaintiff in
an underlying action.

      Defendant issued a commercial general liability insurance
policy to plaintiff, a construction firm, effective from October
2008 to October 2009. Plaintiff was the general contractor at a
construction site where, in February 2009, Allan Speirs was
injured in the course of his work for a subcontractor. Defendant
was notified of the occurrence in March 2009. Plaintiff then
learned that Speirs had allegedly sustained serious injuries in
the accident and had retained counsel and, in January 2010, that
information was promptly forwarded to defendant.
                              -2-                521572

      Speirs commenced an action against plaintiff and the owner
of the construction site in August 2011, alleging violations of
Labor Law §§ 200 and 241 (6), as well as common-law negligence.
In November 2011, plaintiff was served with the summons and
complaint pursuant to Business Corporation Law § 306 but, because
its registered agent was the defunct law firm that handled its
1965 incorporation, it did not receive those documents.
Plaintiff accordingly defaulted, and neither it nor defendant
became aware of the personal injury action until counsel for
Speirs alerted defendant to that fact in March 2012. Defendant
disclaimed coverage because, among other things, plaintiff had
failed to give it notice of the personal injury action as
required by the liability policy.

      Plaintiff thereafter commenced this action seeking a
declaration that defendant is required to defend and indemnify it
in the personal injury action. Following joinder of issue,
plaintiff moved, and defendant cross-moved, for summary judgment.
Supreme Court granted summary judgment to plaintiff, and
defendant now appeals.

      We reverse. The liability insurance policy at issue here
"contain[s] clauses requiring [plaintiff] to provide prompt
notice of [both] an occurrence implicating coverage" and any
ensuing legal action (American Home Assur. Co. v International
Ins. Co., 90 NY2d 433, 440 [1997]; see American Tr. Ins. Co. v
Sartor, 3 NY3d 71, 75-76 [2004]). "The insurer's receipt of such
notice is therefore a condition precedent to its liability under
the policy," and a failure to give that notice "may allow an
insurer to disclaim its duty to provide coverage" (American Tr.
Ins. Co. v Sartor, 3 NY3d at 76; see Great Canal Realty Corp. v
Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]; Argo Corp. v
Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]). At the time
the policy here was issued, "[n]o showing of prejudice [was]
required" to justify a disclaimer (Argo Corp. v Greater N.Y. Mut.
Ins. Co., 4 NY3d at 339).1 The absence of a need to demonstrate


    1
        Amendments to Insurance Law § 3420 subsequently took
effect that prevented an insurer from disclaiming coverage
"unless the failure to provide timely notice has prejudiced" it
                              -3-                521572

prejudice represented "a limited exception to th[e] general
rule," and was justified by a primary "insurer's need to protect
itself from fraud by investigating claims soon after the
underlying events; to set reserves; and to take an active, early
role in settlement discussions" (Matter of Brandon [Nationwide
Mut. Ins. Co.], 97 NY2d 491, 496 [2002]; see Rekemeyer v State
Farm Mut. Auto. Ins. Co., 4 NY3d 468, 475 [2005]; Argo Corp. v
Greater N.Y. Mut. Ins. Co., 4 NY3d at 339).

      There is no dispute that plaintiff provided timely notice
of the underlying accident, but it is equally clear that
plaintiff failed to "[n]otify [defendant] as soon as practicable"
that the personal injury action had been commenced. Indeed,
plaintiff never gave notice to defendant, although counsel for
Speirs did so approximately four months after papers had been
served (see Insurance Law § 3420 [a] [3]; American Tr. Ins. Co. v
Sartor, 3 NY3d at 76; Kalthoff v Arrowood Indem. Co., 95 AD3d
1413, 1415 [2012], lv denied 19 NY3d 815 [2012]). That delay,
"in the absence of an excuse or mitigating factors, is
unreasonable as a matter of law" (233 E. 17th St., LLC v L.G.B.
Dev., Inc., 78 AD3d 930, 932 [2010]). Plaintiff never gave
notice because it did not receive the summons and complaint but,
inasmuch as its nonreceipt flowed from its failure to appoint a
new registered agent for service to replace a defunct one that
had been named decades earlier, that explanation was
"insufficient as a matter of law" (Kalthoff v Arrowood Indem.
Co., 95 AD3d at 1415; see Briggs Ave. LLC v Insurance Corp. of
Hannover, 11 NY3d 377, 381 [2008]; AH Prop., LLC v New Hampshire
Ins. Co., 95 AD3d 1243, 1244-1245 [2012]).

      Plaintiff nevertheless argues that it is entitled to
summary judgment because defendant was not prejudiced by the lack
of timely notice of suit, pointing to analogous cases involving
supplemental uninsured and underinsured motorists coverage where
timely notice of an occurrence, but not of the ensuing legal
action, was given (see Rekemeyer v State Farm Mut. Auto. Ins.
Co., 4 NY3d at 475; Matter of Brandon [Nationwide Mut. Ins. Co.],


(Insurance Law § 3420 [a] [5]; [c] [2], as added by L 2008, ch
388; see Rosier v Stoeckeler, 101 AD3d 1310, 1312 [2012]).
                                 -4-                521572

97 NY2d at 496-498). The Court of Appeals observed in those
cases, however, that the "no-prejudice" rule had less potency in
the context of such coverage because an insurer was able to
protect its interests due to its receipt of the separate no-fault
claim (see Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d
at 496-498). In contrast, "[t]he rationale of the no-prejudice
rule is clearly applicable to a late notice of lawsuit under a
liability insurance policy," as a liability insurer is unlikely
to obtain pertinent information through other means, impairing
its ability "to take an active, early role in the litigation
process and in any settlement discussions and to set adequate
reserves" (Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d at
340). The "no-prejudice" rule accordingly applies to the case
before us, and the failure of defendant to affirmatively
establish prejudice is of no moment (see id.; Liberty Moving &
Stor. Co., Inc. v Westport Ins. Corp., 55 AD3d 1014, 1016-1017
[2008], lv denied 12 NY3d 709 [2009]; 1700 Broadway Co. v Greater
N.Y. Mut. Ins. Co., 54 AD3d 593, 593-594 [2008]).2 Thus,
defendant should have been awarded summary judgment dismissing
the complaint.

         McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.




     2
        Regardless of the fact that defendant was not required to
show prejudice, plaintiff is far from persuasive in asserting
that defendant could not have been prejudiced by the absence of
timely notice of suit. As a result of the lack of notice,
defendant lost the opportunity to "appear and interpose an
answer" on plaintiff's behalf as of right, although counsel for
Speirs was apparently willing to show leniency in that regard
(American Tr. Ins. Co. v Rechev of Brooklyn, Inc., 57 AD3d 257,
257 [2008]).
                              -5-                  521572

      ORDERED that the order is reversed, on the law, with costs,
plaintiff's motion denied, defendant's cross motion granted,
summary judgment awarded to defendant and complaint dismissed,
and it is declared that defendant has no duty to defend or
indemnify plaintiff in the underlying action.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
