        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1053
CA 10-02487
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.


NATIONAL GRANGE MUTUAL INSURANCE COMPANY,
PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

CROYLE, INC., JARED A. HOFFERT, JEFFREY M. KATZ,
TECH CONTRACTING AND NATIONAL GRID USA SERVICE
COMPANY, INC., DEFENDANTS-RESPONDENTS.


COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (CHRISTINA F. DEJOSEPH OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

ROSSI AND MURNANE, NEW YORK MILLS (VINCENT J. ROSSI, JR., OF COUNSEL),
FOR DEFENDANT-RESPONDENT CROYLE, INC.

SMITH, MINER, O’SHEA AND SMITH, LLP, BUFFALO (TERRY D. SMITH OF
COUNSEL), FOR DEFENDANT-RESPONDENT JARED A. HOFFERT.

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, WHITE PLAINS (DEBRA A.
ADLER OF COUNSEL), FOR DEFENDANT-RESPONDENT JEFFREY M. KATZ.

HISCOCK & BARCLAY LLP, SYRACUSE (ROBERT A. BARRER OF COUNSEL), FOR
DEFENDANT-RESPONDENT NATIONAL GRID USA SERVICE COMPANY, INC.


     Appeal from an amended judgment of the Supreme Court, Oneida
County (Samuel D. Hester, J.), entered August 27, 2010 in a
declaratory judgment action. The amended judgment, inter alia,
granted the motion of defendant Jared A. Hoffert for summary judgment
and denied the cross motion of plaintiff for summary judgment.

     It is hereby ORDERED that the amended judgment so appealed from
is unanimously modified on the law by denying that part of the motion
of defendant Jared A. Hoffert seeking attorneys’ fees and expenses and
that part of the cross motion of defendant Croyle, Inc. seeking
attorneys’ fees incurred in defending this action, and as modified the
amended judgment is affirmed without costs.

     Memorandum: Defendant Jared A. Hoffert commenced the underlying
Labor Law and common-law negligence action against, inter alia,
defendant Croyle, Inc. (Croyle) seeking damages for injuries he
sustained on June 26, 2008, during the course of his employment on a
construction project for which Croyle was the construction manager.
The summons and complaint in that action were served on Croyle on
November 29, 2008, along with a letter from Hoffert’s attorney
                                 -2-                          1053
                                                         CA 10-02487

requesting that Croyle deliver the pleadings to its liability
insurance carrier. Plaintiff, Croyle’s liability insurance carrier,
received the summons and complaint and a letter from Croyle’s
insurance agent on December 9, 2008. Hoffert’s attorney thereafter
communicated with a representative of plaintiff, both orally and in
writing, concerning the underlying action. Plaintiff subsequently
sent a letter to Croyle disclaiming coverage based upon Croyle’s
failure to provide notice pursuant to the terms of the insurance
policy. By letter dated January 5, 2009, Hoffert’s attorney requested
plaintiff to reconsider its decision in light of Hoffert’s notice to
plaintiff. Thereafter, plaintiff commenced the instant action seeking
a declaration that, inter alia, it has no obligation to defend and
indemnify Croyle in the underlying action.

     Supreme Court properly granted that part of Hoffert’s motion
seeking summary judgment declaring that plaintiff has an obligation to
defend and indemnify Croyle in the underlying action and properly
denied plaintiff’s cross motion seeking summary judgment declaring
that it did not have such an obligation. Hoffert, as the injured
party, exercised his independent right to provide written notice to
plaintiff, and he is not bound by Croyle’s allegedly late notice (see
Insurance Law § 3420 [a] [3]; Utica Mut. Ins. Co. v Gath, 265 AD2d
805, 806). Plaintiff, however, never disclaimed coverage based on
Hoffert’s alleged failure to provide timely notice, and thus it is
“estopped from raising [Hoffert’s] alleged failure to provide timely
notice of the claim as a ground for disclaiming coverage” (Utica Mut.
Ins. Co., 265 AD2d at 806; see generally General Acc. Ins. Group v
Cirucci, 46 NY2d 862, 863-864; Vacca v State Farm Ins. Co., 15 AD3d
473, 474-475).

     Croyle failed to appeal from that part of the amended judgment
denying its cross motion seeking summary judgment declaring that
plaintiff has an obligation to defend and indemnify it in the
underlying action. We therefore do not address Croyle’s contention
that the court erred in rejecting its contention that its failure to
provide prompt notice to plaintiff is excused by its reasonable belief
in nonliability (see generally Matijiw v New York Cent. Mut. Fire Ins.
Co., 292 AD2d 865). Inasmuch as Croyle did not prevail on the merits,
we conclude that the court erred in granting that part of its cross
motion seeking attorneys’ fees incurred in defending this action (see
generally RLI Ins. Co. v Smiedala, 77 AD3d 1293, 1294-1295). The
court also erred in granting that part of the motion of Hoffert
seeking attorneys’ fees inasmuch as he does not have a contractual
relationship with plaintiff (see De Vore v Balboa Ins. Co., 118 AD2d
989, 991-992). We therefore modify the amended judgment accordingly.




Entered:   October 7, 2011                     Patricia L. Morgan
                                               Clerk of the Court
