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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 203
Strauss Painting, Inc.,
        Appellant-Respondent,
        v.
Mt. Hawley Insurance Company,
        Respondent-Appellant,
Metropolitan Opera Association,
Inc.,
        Respondent.




          Richard Janowitz, for appellant-respondent.
          Clifton S. Elgarten, for respondent-appellant.
          William J. Mitchell, for respondent.




PER CURIAM:
          By agreement dated September 3, 2008, Strauss Painting,
Inc. (Strauss)/Creative Finishes, Ltd. (Creative) contracted with
the Metropolitan Opera Association, Inc. (the Met) to perform
work on the Met's premises; specifically, to strip and repaint
the rooftop steel carriage track for the opera house's automated

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                                 - 2 -                            No. 203

window-washing equipment (hereafter, generally referred to as
the contract).    The contract was a tailored version of the
American Institute of Architects' "Abbreviated Form of Agreement
Between Owner and Contractor For CONSTRUCTION PROJECTS OF LIMITED
SCOPE where the Basis of Payment is a STIPULATED SUM" (AIA
Document A107 [1978 ed]), with the parties' attached Exhibits A
through D made a part thereof.    The first page of the contract
designates the Met as "the Owner" and Strauss/Creative as "the
Contractor."
                                 I.
               Indemnification and Insurance Requirements
          The contract mandates that Strauss/Creative indemnify
and hold the Met harmless, "[t]o the fullest extent permitted by
law," from and against all claims and damages attributable to
bodily injuries "arising out of or resulting from" work performed
by Strauss/Creative or any of its subcontractors "caused in whole
or in part by [their] negligent act or omission," and "regardless
of whether or not . . . caused in part by [the Met]."       The
contract's provisions addressing insurance obligate
Strauss/Creative to purchase and maintain contractors liability
insurance to protect the Met from claims under workers'
compensation and other employee benefit acts, and "claims for
damages because of bodily injury . . . which may arise out of or
result from [Strauss/Creative's] operations" under the contract,
whether undertaken by Strauss/Creative, any of its subcontractors


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or "anyone directly or indirectly employed by any of them."
Additionally, the insurance "shall include contractual liability
insurance" applicable to Strauss/Creative's contractual duty to
indemnify and hold the Met harmless; and "[c]ertificates of such
insurance shall be filed with [the Met] prior to the commencement
of" the construction project.
             Importantly, Exhibit D, entitled "Insurance
Requirements," fleshes out Strauss/Creative's insurance
obligations.    This contract document requires Strauss/Creative to
procure three types of insurance: (1) workers' compensation
insurance (paragraph [a]); (2) owners and contractors protective
liability (OCP) insurance with a combined single limit of $5
million (paragraph [b]); and (3) comprehensive general liability
(CGL) insurance, with combined coverage for property and bodily
injury with a minimum single limit of $5 million, which might be
met by umbrella coverage (paragraph [c]).    As relevant to this
appeal, paragraph (b) of Exhibit D, after identifying OCP
coverage as an insurance requirement, specifies that "[l]iability
should add [the Met] as an additional insured and should include
contractual liability and completed operations coverage";
paragraph (e) directs Strauss to "furnish the Met [with] an
Original Owners and Contractors policy," and also to "provide
certificates of insurance for the [Workers'] Compensation, the
[CGL] and the 'Umbrella' Policy, prior to the commencement of the
contract."


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             The contract was signed on behalf of the Met as "OWNER"
by the opera house's manager, and on behalf of Strauss as
"CONTRACTOR" by Ralph Drewes (Drewes) as "VP".1    Strauss and
Creative, although separately owned, shared the same address and
some of the same employees.2    At his deposition, Drewes testified
that he ran the day-to-day operations of both companies, and
reported to both Victor Strauss, the owner and president of
Strauss, and Hillary J. Klein, the owner and president of
Creative.    Strauss did not have an agreement with District
Council 9, the painters' union, while Creative did, and the
contract between Strauss/Creative and the Met required the
construction project to be carried out by "fully insured union
painters."    For this reason, Strauss subcontracted the labor to
Creative by agreement dated September 3, 2008, consisting of an
unaltered standard form contract with an agreed-upon rider and


     1
      In other words, although the first page of the contract
designates Strauss/Creative as "the Contractor," Drewes executed
the contract on a signature line identifying only Strauss as
"CONTRACTOR" (see Mayo v Metropolitan Opera Assn., Inc., 108 AD3d
422, 424 [1st Dept 2013] [concluding, in the Met's third-party
action against Strauss, Creative and Nova Casualty Company
(Nova), Creative's CGL insurer, that an issue of fact exists with
respect to whether Drewes had authority or intent to bind
Creative to the contract]). Throughout this opinion, we have
generally identified "Strauss/Creative" as the contractor because
this is what the contract's first page says. We do not intend
thereby to imply that Creative is bound to the contract, an issue
which has yet to be resolved. But, of course, whether or not
Creative is bound to the contract, Strauss surely is.
     2
      In its corporate disclosure statement filed in this Court,
Strauss identifies Creative as an "affiliated corporation."

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attachments, and the underlying construction contract between
Strauss/Creative and the Met (hereafter, the subcontract).
           The subcontract designates Strauss as "the Contractor"
and Creative as "the Subcontractor," and generally requires
Creative to undertake the construction project in accordance with
the terms of the contract, and to provide specified insurance and
indemnify and hold harmless the Met and/or Strauss.   The
subcontract makes Creative solely responsible for worksite
safety.   Victor Strauss signed the subcontract on behalf of
Strauss; Drewes testified that he "believe[d] that [he] signed it
on behalf of Creative."3
           Creative began work on the construction project on
September 4, 2008.   At some point, the Met was supplied with a
certificate of insurance for a CGL policy issued by Nova to
Creative, stating that the Met and Strauss were additional
insureds under the policy.4   The Met was never furnished an
original OCP policy covering the construction project, and, as it
turned out, neither Strauss nor Creative actually purchased an
OCP policy to protect the Met.
                  Strauss's CGL Policy with Mt. Hawley
           At the time Strauss/Creative contracted with the Met,



     3
      The subcontract bears the handwritten signature "Hillary J.
Klein" with Drewes's initials.
     4
      The record does not include a copy of this policy, or of
the certificate of insurance.

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Strauss had in place a CGL policy issued by Mt. Hawley Insurance
Company (Mt. Hawley) for the policy period of November 7, 2007 to
November 7, 2008.   The policy included ISO form endorsement CG 20
33 07 04 ("Additional Insured -- Owners, Lessees or Contractors
-- Automatic Status When Required in Construction Agreement with
You"), which specifies as follows:
          "WHO IS AN INSURED is amended to include as an
          additional insured any person or organization for whom
          [Strauss is] performing operations when [Strauss] and
          such person or organization have agreed in writing in a
          contract or agreement that such person or organization
          be added as an additional insured on [Strauss's]
          policy" (emphasis added).
Under the policy, "such person or organization" would be an
additional insured with respect to liability for bodily injury so
long as the injury was caused, at least in part, by Strauss's
acts or omissions or "[t]he acts or omissions of those acting on
[Strauss's] behalf."
          Regarding notice, the policy specifies that bodily
injury "will be deemed to have been known to have occurred at the
earliest time when any insured listed under . . . WHO IS AN
INSURED or any employee authorized by [an insured] to give or
receive notice of an occurrence or claim . . . [b]ecomes aware .
. . that bodily injury . . . has occurred or has begun to occur"
(internal quotation marks omitted).    Further, the insured "must
see to it that [Mt. Hawley is] notified as soon as practicable of
an occurrence or an offense which may result in a claim"
(internal quotation marks omitted).


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          The Accident, the Personal Injury Lawsuit and
                    Notice to the Insurers
          On September 16, 2008, Manuel Mayo (Mayo), a Creative
employee, was injured when he fell from a fixed ladder located on
the sixth floor of the opera house.    This 15-foot ladder led to a
hatch door in the ceiling, which provided access to the rooftop
and thus the steel carriage track.     Mayo was trying to close the
hatch door at the end of his shift when he lost his footing.
Drewes first learned of Mayo's accident when the
receptionist/office manager at Creative's office fielded a
telephone call late in the workday on September 16th from someone
at the opera house.   The caller (not identified in the record)
reported that Mayo had been injured and was being transported to
the hospital by ambulance.   Drewes happened to be in the office
at the time the call was received.
          The next day Drewes called his "primary contact" at I.
Dachs & Sons (Dachs), the insurance broker for both Creative and
Strauss, to discuss upcoming liability insurance renewals.
During this conversation, Drewes brought up Mayo's accident, and
was "[led] to believe by [the broker] that there was no need to
notify the carrier, the general liability carrier, because it was
a workers' compensation claim."
          Creative timely filed an "Employer's Report of Work-
Related Accident/Occupational Disease" (Form C-2) to notify the
Workers' Compensation Board and Creative's compensation carrier
about Mayo's accident.   "A couple of days later" or perhaps "a

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week after" Mayo's accident while Drewes was at the opera house
to check on how the construction project was coming along, he
mentioned to the Met's house manager that "[t]here was an
accident, the man was hurt and he [i.e., Drewes] expected him
[i.e., Mayo, the injured worker] to come back to work, [and] at
that point it was a worker's comp claim".5
               By complaint dated November 19, 2008, Mayo and his wife
sued the Met and Lincoln Center for the Performing Arts, Inc.
(Lincoln Center), asserting causes of action for negligence,
violations of the Labor Law and loss of consortium in connection
with Mayo's work-related injuries (hereafter, the Mayo lawsuit).
Mayo alleged that the hatch door was broken and in disrepair, the
ladder's rungs were worn and not skid-resistant, and there were
no proper safety devices such as a cage, safety belt or safety
line.       The Met received the summons and complaint in the Mayo
lawsuit from the Secretary of State on December 5, 2008.
               That same day, the Met's in-house attorney wrote to
Strauss and Creative, with a copy to Travelers Insurance Company
(Travelers), the Met's primary liability carrier, forwarding the
summons and complaint.      The attorney advised Strauss that the Met
expected to be indemnified and held harmless to the fullest
extent permitted by law, as agreed-to by Strauss in the contract.


        5
      Deposition testimony included in the record, although
incomplete, makes clear that the Met's house manager, assistant
director of security and an in-house nurse knew about Mayo's
accident just after it occurred.

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This December 5th letter also referred to the certificate of
insurance provided the Met, which "evidenc[ed] General Liability
coverage of $1,000,000 per occurrence/$2,000,000 aggregate from
[Nova] and Excess/Umbrella Liability coverage issue[d] by RSUI
Indemnity Co. in the amount of $5,000,000 per occurrence and in
the aggregate."   Asserting that the Met was an additional insured
under these policies, the attorney asked Strauss to "immediately
notify these carriers that the Met expect[ed] them to provide,
without cost to the Met, a defense in this lawsuit, as well as
indemnification."   On December 11, 2008, the Met received another
copy of the summons and complaint by mail, this time from the
Mayos' lawyer.    The Met's in-house attorney again wrote Strauss
and Creative, with a copy to Travelers, forwarding the summons
and complaint and requesting that "the necessary actions" be
taken.
          On December 29, 2008, a representative of Travelers
wrote to Strauss, Creative, Nova and Dachs.   She stated that
Travelers was the general liability insurer for the Met and
Lincoln Center, and that Travelers had received a complaint
alleging that Mayo had been injured while working for Creative at
the opera house; she then recited Strauss's obligation under the
contract to indemnify and hold the Met harmless from claims such
as the Mayo lawsuit, and to "procure insurance naming [the Met]
as an additional insured."   The Travelers representative enclosed
copies of the lawsuit, contract and certificate of insurance, and


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asked for written confirmation that "a defense and
indemnification will be provided, and [for] the identity of
counsel assigned to the defense."   On January 12, 2009, Mt.
Hawley's broker received notice of the Met's claim (including a
copy of Travelers' December 29th letter) from Dachs.   Mt.
Hawley's broker then faxed the Met's claim to Mt. Hawley, which
acknowledged receipt on January 14, 2009.
          Mt. Hawley's Response to Strauss's and the Met's
               Tenders and the Met's Third-Party Action
          On February 3, 2009, Mt. Hawley wrote to Strauss to
deny coverage on the basis of late notice because Strauss "was
aware of this occurrence on the date it occurred[,] which was
September 16, 2008;" and to inform Strauss that Mt. Hawley was
"reviewing the information as to whether [the Met] and/or
[Lincoln Center] qualify as additional insureds under the terms
of [the] policy."   Finally, Mt. Hawley let Strauss know that it
had tendered the defense of the Mayo lawsuit to Nova on its
behalf; i.e., by letter dated February 2, 2009, with copies to
Drewes and Dachs, Mt. Hawley asked Nova to defend and indemnify
the Met and Lincoln Center in the Mayo lawsuit, and to defend and
indemnify Strauss in any third-party action brought by the Met
and Lincoln Center.
          In a letter to Travelers, also dated February 3, 2009,
Mt. Hawley first observed that the contract between the Met and
Strauss/Creative nowhere stated that Lincoln Center was to be
indemnified or made an additional insured under any policy issued

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to Strauss and/or Creative.   Accordingly, Mt. Hawley denied
Travelers' tender as to Lincoln Center.6   Mt. Hawley continued
that it was "attempting to determine" whether the Met qualified
as an additional insured under the terms of its CGL policy with
Strauss.
           Referring to the C-2, which showed that Mayo was
employed by Creative, Mt. Hawley requested "copies of checks that
[the Met] issued for payment of the work required in the
contract," adding that "[i]t [was] questionable as to whether
[Strauss] was actually involved in this work."   Mt. Hawley noted
that, in light of the additional insured endorsement in its CGL
policy with Strauss, "we need to determine whether [Strauss] was
actually involved in this work in order to determine whether [the
Met] is added as an additional insured"; and that "[a]t this
point in time, [Mt. Hawley] reserves the right to assert that
[the Met] is not an additional insured under the Policy . . .
issued to [Strauss; h]owever, we continue to ask for more
information and it may take further discovery to determine our
obligations."   Summing up, Mt. Hawley told Travelers that
                "[a]s we have denied coverage for contractual
           indemnification to [Strauss] and have reserved our
           rights as to whether [the Met] is an additional insured
           under the policy issued to [Strauss], we will not be


     6
      The December 29th letter from Travelers did not purport to
ask Mt. Hawley to defend and indemnify Lincoln Center, the Met's
landlord. Lincoln Center, the organization (as opposed to
Lincoln Center, the Met's address) is not mentioned in either the
contract or the subcontract.

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            taking over the defense and/or indemnification of [the
            Met] at this time. As stated above, we have denied
            coverage for contractual indemnification as to [Lincoln
            Center]."
            On March 4, 2009, Mt. Hawley again wrote Travelers,
this time stating that the information requested in the February
3rd letter (i.e., copies of checks issued by the Met to Strauss
to pay for the construction project) had not been received, and
that its "investigation [had] yielded information that [the Met]
was aware of this loss on the date it occurred [since
(a)pparently [the Met] contacted [Drewes] at [Strauss] to inform
him of the accident."   Mt. Hawley added that "[s]hould the
information that we have been provided be correct, no coverage
would apply to [the Met] in this lawsuit," and requested an
affidavit as to when the Met "first became aware" of Mayo's
accident.   Mt. Hawley further declared that "[u]ntil such time as
we can review the affidavit being provided, [Mt. Hawley] reserves
the right to assert that no coverage would apply based on" the
CGL policy's notice provision.   Both the Met and Lincoln Center
are shown as copied on this letter.     That same day, March 4,
2009, Mt. Hawley wrote to Strauss's attorney, reiterating its
denial of coverage to Strauss on the ground of late notice.
            Meanwhile, on January 28, 2009, Nova responded to
Travelers' December 29th letter by disclaiming coverage of the
Met as an additional insured on Creative's CGL policy due to late
notice (see Mayo v Metropolitan Opera Assn., Inc., 2011 NY Slip
Op 32943[U], *12 [Sup Ct, NY County 2011]).    The Met was not

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                              - 13 -                         No. 203

copied on this disclaimer letter sent to Travelers.
           On February 6, 2009, the Met brought a third-party
action in the Mayo lawsuit against Strauss, Creative and Nova.
The Met alleged causes of action against Strauss and Creative for
common-law and contractual indemnification, and for breach of
contract for failure to purchase the OCP policy required by
Exhibit D of the contract, and alleged a cause of action against
Nova for breach of contract for denying coverage.
                 Strauss's Lawsuit against Mt. Hawley and
                     the Met and the Decisions Below
           By complaint filed on March 16, 2009, Strauss commenced
this action against Mt. Hawley and the Met, seeking a declaration
that Mt. Hawley was obligated to defend and indemnify it in the
Met's then just-filed third-party action.   On June 16, 2010, 15
months later, the Met cross-claimed against Mt. Hawley, asking in
its first cross-claim for a declaration that it was an additional
insured on Strauss's CGL policy, thereby requiring Mt. Hawley to
defend and indemnify it in the Mayo litigation; on July 9, 2010,
the Met moved for summary judgment on this cross-claim.     On July
14, 2010, Mt. Hawley moved to dismiss the Met's cross-claims as
untimely, and on July 30, 2010, Mt. Hawley cross-moved for
summary judgment against the Met, seeking a declaration that it
was not obligated to defend and indemnify the Met in the Mayo
lawsuit.   Then on July 26, 2010, Mt. Hawley moved for an order
granting summary judgment to dismiss Strauss's complaint and to
declare that it was not obligated to defend and indemnify Strauss

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                                - 14 -                       No. 203

in the Mayo lawsuit.7
             Supreme Court disposed of these motions and cross-
motion in a decision and order dated October 13, 2011 (2011 NY
Slip Op 32706[U] [Sup Ct, NY County 2011]).    Addressing the Met's
motion and Mt. Hawley's cross-motion, the judge determined that
the Met was an additional insured on Strauss's CGL policy, and
that while the Met's three-month (counting from the date of the
lawsuit) or four-month (counting from the date of the accident)
delay in notifying Mt. Hawley was unreasonable as a matter of
law, Mt. Hawley did not comply with its statutory duty under
Insurance Law former § 3420 (d)8 to promptly disclaim coverage,

     7
      The Mayo lawsuit settled on October 16, 2013. The Met's
third-party action, which had previously been severed from the
underlying personal injury lawsuit, remains pending. According
to the Met's counsel, the settlement "preserved the third-party
actions and all insurance coverage and contractual indemnity
rights among all of the defendant parties and their carriers."
     8
         This provision specified that

          "[i]f under a liability policy delivered or issued for
     delivery in this state, an insurer shall disclaim liability
     or deny coverage for death or bodily injury arising out of a
     motor vehicle accident or any other type of accident
     occurring within this state, it shall give written notice as
     soon as is reasonably possible of such disclaimer of
     liability or denial of coverage to the insured and the
     injured person or any other claimant" (Insurance Law former
     § 3420 [d]).

     In response to our decision in Preserver Ins. Co. v Ryba (10
NY3d 635, 642 [2008] [under Insurance Law former § 3420 (d), a
policy is "issued for delivery" in New York only if it "covers
both insureds and risks in this state"]), the Legislature struck
"issued for delivery" from section 3420 (d), which now covers
liability policies that are "issued or delivered in this state"

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as the letters from Mt. Hawley to Travelers and/or the Met only
reserved Mt. Hawley's right to do so.   Consequently, the judge
ruled that Mt. Hawley was precluded from disclaiming coverage to
the Met.   Relatedly, Supreme Court denied Mt. Hawley's motion to
dismiss the Met's cross-claim due to untimeliness, chalking up
any delay to Mt. Hawley's neglect to disclaim coverage promptly;
and dismissed Strauss's complaint against Mt. Hawley on the basis
of its late notice to Mt. Hawley of Mayo's accident.
           In its decision and order dated April 11, 2013, the
Appellate Division agreed with Supreme Court that Mt. Hawley was
required to defend the Met in the Mayo lawsuit because the
contract directed Strauss to purchase liability insurance naming
the Met as an additional insured, and the CGL policy issued by
Mt. Hawley to Strauss contained an additional insured endorsement
(105 AD3d 512, 513 [1st Dept 2013]).    The court also agreed with
Supreme Court that Mt. Hawley had not timely disclaimed coverage;
rather, its letters were only "intended to preserve its right to
disclaim," and thus were "insufficient to actually disclaim
coverage" (id.).   Finally, the Appellate Division rejected
Strauss's claim that its notice to Mt. Hawley was timely, opining
that



(see Insurance Law § 3420 [d] [2]; see also L 2008, ch 388 [eff.
Jan. 19, 2009 for policies issued or delivered in New York on or
after that date and any action maintained under such a policy]).



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           "[Strauss's] notice of the accident to Mt. Hawley was
           untimely as a matter of law, and Mt. Hawley timely
           disclaimed coverage on that ground. [Strauss's] notice
           to its broker did not provide timely notice to Mt.
           Hawley. There is no indication that [Strauss's] broker
           acted as an agent for Mt. Hawley or that the CGL policy
           listed [Strauss's] broker as its agent" (id. at 514).
           Strauss now appeals and Mt. Hawley cross-appeals
pursuant to leave granted by the Appellate Division on August 20,
2013, asking us whether its order in this matter was properly
made (2013 NY Slip Op 82536[U] [1st Dept 2013]).
                              II.
           In this long-running coverage dispute, Strauss's appeal
calls upon us to decide whether Strauss timely notified Mt.
Hawley of Mayo's accident.   Mt. Hawley's cross-appeal poses the
threshold question of whether the Met is an additional insured on
Strauss's CGL policy with Mt. Hawley; and then, if it is, whether
Mt. Hawley promptly notified the Met that it was disclaiming
coverage on account of untimely notice.
                          Strauss's Appeal
           Strauss argues that the lower courts erred when they
concluded that its notice to Mt. Hawley was untimely as a matter
of law.   Relying on Mighty Midgets v Centennial Ins. Co. (47 NY2d
12 [1979]), Strauss takes the position that whether it gave
notice to Mt. Hawley "as soon as practicable" or, alternatively,
whether its late notice was excusable are questions for the trier
of fact and may not be decided as a matter of law.   This is so,
Strauss contends, because Drewes followed his usual and customary


                              - 16 -
                                - 17 -                       No. 203

practice of promptly notifying Dachs, Strauss's broker, of Mayo's
accident, with every reasonable expectation that Dachs, in turn,
would timely notify the proper insurer.
             We have long held that a policyholder's timely notice
to a broker does not "constitute the notice contemplated by the
[insurance] policy since a broker is normally the agent of the
insured and notice to the ordinary insurance broker is not notice
to the liability carrier" (Security Mut. Ins. Co. of N.Y. v
Acker-Fitzsimons Corp. 31 NY2d 436, 442 n 3 [1972]; see also
Hartford Fire Ins. Co. v Baseball Off. of Commr., 236 AD2d 334
[1st Dept 1997] [late notice was not excused even though the
policyholders "instructed their broker to inform (the primary and
excess insurers) about the lawsuit shortly after its
commencement"], lv denied 90 NY2d 803 [1997]; Gershow Recycling
Corp. v Transcontinental Ins. Co., 22 AD3d 460, 462 [2d Dept
2005] [a policyholder's "timely notice of the action to its
broker is of no consequence" and thus does not excuse the failure
to comply with notice obligations under an insurance policy]).
Our decision in Mighty Midgets does not alter this fundamental
principle.
             Mighty Midgets was a nonprofit corporation organized to
encourage, manage and otherwise support boys' football teams in
Orangetown in Rockland County.    The Dunn & Fowler Division of
Frank B. Hall & Company (Dunn) secured two insurance policies for
the Orangetown Midgets: a liability policy from Centennial


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                              - 18 -                         No. 203

Insurance Company (Centennial) and a policy providing accident
and health protection with the Hartford Accident & Indemnity
Company (the Hartford).   We described Dunn as "a leading
specialist in athletic team insurance and apparently the
organization upon which the more than 2,500 teams enrolled in the
national program of which the Midgets were a part would rely for
guidance in insurance matters" (Mighty Midgets, 47 NY2d at 17)
          The roles of Dunn and Centennial were uncommonly
intertwined; specifically, in addition to being the solicitor of
liability policies with Centennial, Dunn collected the premiums
and was designated by the policy as "agent or broker."   Dunn
wrote most of its athletic team business with Centennial, which
entrusted Dunn with large batches of blank policies already
executed by Centennial-authorized signatures, leaving it
completely up to Dunn to fill in policy numbers, names of
insureds, premiums and the date a policy was to go into effect.
          On October 18, 1970, a nine-year-old boy, a member of a
Midgets-sponsored team, was injured when, right after a game in
which he had played, a large pot of boiling water which rested on
the counter of an improvised hotdog stand operated by the Midgets
as a fundraising activity, was "caused to pour over him" (id.).
Robert Halle (Halle), the 21-year-old volunteer president of the
Midgets was not present at the time, but he learned of the
accident before the day was out and called Dunn to ask "whether
he should 'put it under a medical or [a] liability claim'" (id.).


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The Dunn representative instructed Halle to notify the Hartford,
and Halle dutifully filed a claim with the Hartford, on a form
supplied by Dunn.
          Then on April 7, 1971, the Hartford notified the
Midgets that its policy did not cover the accident because it
happened after the game in which the nine-year old had played.
Although the nine-year old's father, "an avid supporter of the
Midgets," had never before exhibited the slightest inclination to
pursue a liability claim, the Hartford's refusal to pay his son's
medical claim caused him to consult a lawyer, who wrote the
Midgets a letter dated May 25, 1971, indicating that a liability
suit was "in the offing" (id. at 18).   Halle immediately
forwarded the lawyer's letter to Centennial in care of Dunn.
This was the Midgets' first written notice to Centennial.    The
liability policy required notice of an occurrence to be made to
the insurer in writing and "as soon as practicable."   In light of
the seven-month delay, Centennial disclaimed coverage due to
untimely notice, and the Midgets brought a declaratory judgment
action.
          On this record, the trial judge, sitting without a
jury, found as a fact
          "(1) that Dunn's handling of the communications from
          Halle was negligent; (2) that 'under the
          circumstances', including Halle's 'limited . . .
          understanding of insurance matters' and the
          relationship between Dunn and Centennial, the Midgets
          acted reasonably in that they did all that they 'could
          do' until the arrival of the letter of May 25 first
          disabused them of the misinformation Dunn had imparted;

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          and (3) that the letter transmitting the . . . lawyer's
          liability claim letter constituted written notice given
          'as soon as practicable' after the claim was made" (id.
          at 18-19 [internal footnote omitted]).
The Appellate Division affirmed, with two Justices dissenting (62
AD2d 1014 [2d Dept 1978]).   There was no disagreement about the
facts; the dissenters simply would have held the written notice
to be untimely.
          Sitting as a six-judge court, we also affirmed, by a
margin of four to two.   The dissenters commented that "it [was]
especially difficult to conclude that it was not 'practicable' to
give notice long before the expiration of seven months when the
insured gave the agent oral notice the day after the accident"
(47 NY2d at 23 [Jones, J., dissenting]).   The majority ruled,
however, that "in the facts and circumstances" presented,
          "there was enough evidence from which it could be found
          that the Midgets' failure to notify the insurer before
          it did was not unreasonable and that, consequently,
          Centennial was not entitled to disclaim. Since our
          review is limited to determining whether the conclusion
          of the fact-finding courts finds support in the
          evidence, we must uphold their determination" (id. at
          16, 21).
Like the lower courts, the "facts and circumstances" that we
considered particularly compelling were not just Halle's youth
and "limited personal and vocational background[] [which was]
totally alien to either the world of insurance or that of the
law" (id. at 18), but also the unusually close ties between
Centennial and Dunn, which reasonably caused Halle to solicit and
blindly follow Dunn's advice.


                                - 20 -
                             - 21 -                          No. 203

          Here, by contrast, although Dachs may have long been
Strauss's insurance broker, nothing in this record reveals the
kind of close relationship between Dachs and Mt. Hawley that
existed between Dunn (which was also Centennial's agent for
receipt of notice of claim) and Centennial.   The record here does
not support the proposition that the insurer and broker had a
relationship sufficiently close to suggest that service to the
broker was effectively service to the insurer.   By contrast, in a
situation more akin Mighty Midgets it might be possible for even
a relatively sophisticated representative of an insured to have a
good faith, reasonable belief that notice to the broker is
sufficient if the insurer's own actions hold the broker out to be
its agent for the purpose of giving notice. In such a case, if
the effect of the insurer's representations is to lull the
insured into a false belief that notice had been provided through
the agent, the insurer should not be able to raise the insured's
failure to provide an earlier notice as a defense to coverage.
          Further, it should be noted that Drewes was not an
unsophisticated 21-year old like Halle, unusually dependent upon
Dunn, the insurance broker, for advice and guidance.   Rather,
Drewes was the longtime day-to-day operations manager of two
construction contractors in New York City.    Indeed, by virtue of
Drewes's experience in the construction industry, it is a wonder
that he did not grasp the overwhelming probability that Strauss
would be drawn into a Labor Law lawsuit immediately upon learning


                             - 21 -
                                - 22 -                      No. 203

that Mayo had suffered an elevation-related injury while on the
job.   In short, the outcome in Mighty Midgets turned on unusual
and extenuating facts, not remotely comparable to the
circumstances of this case.
                       Mt. Hawley's Cross Appeal
           Under the additional insured endorsement of Strauss's
CGL policy, whether the Met was an additional insured hinges on
whether Strauss and the Met "have agreed in writing in a contract
or agreement that [the Met] be added as an additional insured on
[Strauss's] policy."    The Met argues that the second sentence of
paragraph (b) of the contract's Exhibit D contains the requisite
agreement in writing.    Paragraph (b), in its entirety, requires
Strauss/Creative to procure the following insurance:
                "b. Owners and contractors protective liability
           insurance with a combined single limit of
           $5,000,000.00. Liability should add the Metropolitan
           Opera Association as an additional insured and should
           include contractual liability and completed operations
           coverage" (emphasis added).
           Mt. Hawley counters that paragraph (b) simply reflects
the Met's considered choice to require Strauss to purchase OCP
coverage to protect the Met from risks arising out of Strauss's
work, rather than mandating that Strauss include the Met as an
additional insured on its CGL policy.    Mt. Hawley observes that
the OCP policy specified in this paragraph would have provided
the Met with an unshared $5 million limit; by contrast, as an
additional insured on Strauss's CGL, the Met would have to have
shared the policy limits with Strauss and any other insureds on

                                - 22 -
                              - 23 -                          No. 203

the policy.
           We agree with Mt. Hawley that the second sentence in
paragraph (b) can only refer to the OCP coverage that Strauss
promised to purchase for the Met in the first sentence -- but
never actually acquired.   This conclusion is buttressed by
paragraph (c) of Exhibit D, which sets out Strauss's insurance
commitments to the Met with respect to CGL coverage, stating as
follows:
           "Comprehensive General Liability. Combined coverage
           for property and bodily injury with a minimum single
           limit of $5,000,000.00 (Limits may be met with an
           'Umbrella Policy'[)]."
Notably, this provision -- the only paragraph in Exhibit D
addressing Strauss's insurance obligations with respect to GCL
coverage -- says nothing about including the Met as an additional
insured on Strauss's CGL policy.   We therefore conclude that the
Met is not an additional insured on the CGL policy issued to
Strauss by Mt. Hawley.
           Finally, because the Met is not an additional insured
under Strauss's CGL policy, we do not reach and need not decide
the question of whether Mt. Hawley promptly notified the Met that
it was disclaiming coverage under that policy due to untimely
notice (see Zappone v Home Ins. Co., 55 NY2d 131, 134 [1982]
["failure to disclaim coverage does not create coverage which (a
liability) policy was not written to provide"]).
           Accordingly, the order of the Appellate Division should
be modified, without costs, by denying defendant Metropolitan

                              - 23 -
                             - 24 -                       No. 203

Opera Association's motion for summary judgment on its first
cross-claim and, as so modified, affirmed, and the certified
question answered in the negative.




                             - 24 -
Strauss Painting, Inc. v Mt. Hawley Ins. Co.
No. 203




READ, J. (DISSENTING IN PART):
          The second sentence of Exhibit D, paragraph (b) in the
September 3, 2008 construction contract (hereafter, the contract)
states as follows: "Liability should add the Metropolitan Opera
Association as an additional insured and should include
contractual liability and completed operations coverage."   While
this sentence may be awkwardly phrased and infelicitously placed
within Exhibit D,1 it is not ambiguous in light of the realities


     1
      Exhibit D, entitled "Insurance Requirements," states in its
entirety as follows:

     "a. Workmen's Compensation Insurance covering contractors
     employees meeting all statutory requirements prescribed in
     New York State.

     "b. Owners and contractors protective liability insurance
     with a combined single limit of $5,000,000.00. Liability
     should add the Metropolitan Opera Association as an
     additional insured and should include contractual liability
     and completed operations coverage.

     "c. Comprehensive General Liability. Combined coverage for
     property and bodily injury with a minimum single limit of
     $5,000,000.00 (Limits may be met with an "Umbrella
     Policy"[)].

     "d. Contractor will supply the Metropolitan Opera
     Association with a Hold Harmless and indemnify them against
     any and all claims arising from their work relative to this
     agreement.


                                 - 1 -
                                - 2 -                      No. 203

of the insurance marketplace.   Given the differences between
owners and contractors protective liability (OCP) and
comprehensive general liability (CGL) policies, this sentence
clearly obligates Strauss Painting, Inc. (Strauss) to have in
place a CGL policy protecting the Metropolitan Opera Association,
Inc. (the Met) as an additional insured.   With all due respect to
my colleagues, there is simply no other way to read it.
Accordingly, I respectfully dissent from so much of the
majority's decision as determined that the Met is not an
additional insured on the CGL policy issued by Mt. Hawley to
Strauss.   For the reasons that follow, I would therefore answer
the certified question in the affirmative.
                                I.
           An OCP policy covers the named insured's liability for
bodily injury and property damage caused, in whole or in part, by
the designated contractor's work for the insured on a specified
construction project.   The contractor purchases the OCP policy,
which protects the insured from vicarious liability incurred as a


     "e. Contractor will furnish the Metropolitan Opera
     Association an Original Owners Contractor policy. Also will
     provide certificates of insurance for the Workman's
     Compensation, the Comprehensive General Liability and the
     "Umbrella" Policy, prior to the commencement of the
     contract.

     "f. All insurance policies must contain a clause that
     insures the Metropolitan Opera Association a 30 day written
     notification of cancellation or non-renewal of policy."



                                - 2 -
                                - 3 -                      No. 203

result of the contractor's acts or omissions on the project, and
liability arising out of the insured's own acts or omissions in
connection with its "general supervision" of the work performed
by the contractor (see generally Donald S. Malecki et al., The
Additional Insured Book, International Risk Management Institute
[IRMI] at 202-217 [7th ed 2013] [hereafter Malecki]; Craig F.
Stanovich, OCP Liability versus Additional Insured Coverage, IRMI
[Oct 2009] [hereafter Stanovich 2009],
www.irmi.com/expert/articles/2009/stanovich10-cgl-general-
liability-insurance.aspx).
          Mt. Hawley insists that the second sentence of
paragraph (b) obligated Strauss to include the Met as an
additional insured on the OCP policy that the first sentence
directed Strauss to purchase for the benefit of Lincoln Center.
For this reason, Mt. Hawley criticizes the Appellate Division for
"failing to recognize the critical distinction between the OCP
Policy, on which the Contractor was expressly required to have
the Met named as an additional insured, and the CGL Policy, for
which no such requirement existed"; and argues that "as the owner
of the property, Lincoln Center would have been listed as the
owner on any OCP Policy.    The Met would have been an additional
insured on that policy."2    This is how Mt. Hawley tries to


     2
      Apparently, the only ISO (Insurance Services Offices, Inc.)
endorsement available for use in adding an additional insured to
an OCP policy is the "Additional Insured -- Engineers, Architects
or Surveyors (CG 20 31)" endorsement (see Malecki at 214,

                                - 3 -
                               - 4 -                        No. 203

explain away the requirement to make the Met an additional
insured.
           Lincoln Center owns the opera house and is the Met's
landlord; however, as Mt. Hawley itself pointed out when
responding to Travelers' November 29th letter, Lincoln Center
(the entity) is nowhere mentioned in the contract, which
identifies the Met as the project owner.   Thus, there is no basis
within the four corners of the contract for interpreting
paragraph (b) as requiring Strauss to purchase an OCP policy
issued in the name of Lincoln Center.   And it is not obvious how
such a policy could have been obtained since Lincoln Center was
not the party with which Strauss contracted to perform the work.
           Next, the second sentence of paragraph (b) states that
the policy on which the Met is to be included as an additional
insured must provide "contractual liability and completed
operations coverage."   "Contractual liability" in this context
refers to the liability assumed by Strauss under the contract's
hold harmless and indemnification provision, while "completed
operations" refers to coverage for injuries or damages occurring
after the construction project has been finished.   These coverage



Appendix B), which obviously is not relevant here. In other
words, there is no such thing as standard policy language for a
lessee who contracts with a contractor for a construction project
on the leased premises to become an additional insured on an OCP
policy. This is not surprising since the lessee under such
circumstances, as is the case with the Met here, would be the
named insured on the policy.

                               - 4 -
                               - 5 -                        No. 203

options (i.e., contractual liability and completed operations)
are available to an additional insured on a CGL policy; they are
not, however, available on an OCP policy (see e.g. Craig F.
Stanovich, Contractual Liability and the CGL Policy IRMI [May
2002] [www.irmi.com/expert/articles/2002/stanovich05.aspx?cmd]
[explaining how contractual liability insurance, found in the CGL
insurance policy, applies]; Stanovich 2009 ["The OCP policy
excludes coverage for bodily injury or property damage if such
injury or damage takes place after the earlier of when the
operation has been completed or put to its intended use by anyone
other than another contractor or subcontractor working for the
Designated Contractor on that project . . . The ISO CG 20 37 and
many insurers' independently filed additional insured
endorsements provide coverage for the additional insured for
bodily injury or property damage within the product and completed
operations hazard.   This coverage option is not available on the
OCP policy" [emphasis added]; Malecki at 58-60, 202).   In short,
the second sentence of paragraph (b) cannot mean that Strauss was
required to purchase an OCP policy with contractual liability and
completed operations coverage for the benefit of the Met as an
additional insured because no such policy option exists.    This
pair of agreed-to coverages could only be provided by including
the Met as an additional insured on Strauss's CGL policy.
          The Met sought in Exhibit D to transfer or shift to
Strauss in every way possible the risk of financial loss due to


                               - 5 -
                                - 6 -                      No. 203

bodily injuries or property damages occurring in connection with
the construction project by requiring Strauss to have in place
(1) workers' compensation insurance; (2) an OCP policy in favor
of the Met as the named insured; (3) a contractual hold harmless
and indemnification provision whereby Strauss assumed the Met's
tort liability arising out of construction operations; and (4) a
CGL policy including the Met as an additional insured, which
provided for contractual liability and completed operations
coverage.
            Known as the "belt and suspenders" approach, adding an
indemnitee (here, the Met) as an additional insured on the
indemnitor's (here, Strauss's) liability insurance gives "some
protection to fall back on in the event there is a problem with
the enforceability of the hold harmless agreement" (id. at 59-60,
69 ["(M)ost contractual risk transfers . . . involve using both
an indemnity clause and additional insured status to work hand-
in-hand"]; see also The Handbook on Additional Insureds, American
Bar Association, at 38-39 [Michael Menapace et al. ed. 2012]
["There are multiple reasons for a party to insist on both
indemnification provisions and insurance requirements in a single
contract . . . (T)he protection afforded by indemnification and
hold harmless provisions, on the one hand, and additional insured
coverage, on the other, are in many instances complimentary (sic)
and not co-extensive.   Thus, to maximize one's protection, a
party should include in the contract both an indemnification and


                                - 6 -
                               - 7 -                       No. 203

hold harmless requirement and an additional insured
requirement"]).   Further, "[i]n the construction industry,
general contractors and project owners who seek additional
insured protection often will insist upon receiving [ISO
endorsements allowing] coverage for both ongoing operations and
completed operations" (id. at 51).
          As Mt. Hawley points out, an OCP policy may be an
alternative to adding the owner as an additional insured to the
contractor's CGL policy.   But while there are advantages and
disadvantages to each approach (see generally Malecki at 214-
217), an OCP policy and additional insured status are not, as Mt.
Hawley implies, mutually exclusive.    Indeed, "[i]t is not unusual
for an indemnitee to request both an OCP policy and additional
insured status in the expectation that one of the coverages will
apply in the event of a claim or suit" (id., at 216).    Nothing
(except perhaps cost and/or relative bargaining power) prevents a
project owner from seeking to avail itself of the complementary
advantages of both coverages, as the Met clearly did in this
case.
          Finally, Mt. Hawley contends that the Met sought OCP
coverage in lieu of additional insured status as part of a "well-
reasoned insurance scheme" since "[t]he OCP policy would provide
the Met with protection arising out of [Strauss's] work and, more
importantly, . . . an unshared $5M limit," whereas, "[a]s an
additional insured on [Strauss's] CGL policy, the Met would . . .


                               - 7 -
                                - 8 -                      No. 203

share the policy limits with all other insureds on the Policy --
exposing the Met to a wasting of liability limits beyond its
control."   Again, Mt. Hawley assumes that a project owner would
only bargain with its contractor to provide OCP coverage or
additional insured status on the contractor's CGL policy, not
both.   It is certainly true that an OCP policy provides the named
insured a separate set of limits, while CGL policy limits are
shared by all insureds; that is one of the advantages that an OCP
policy offers.   But Mt. Hawley disputes that the Met was the
intended named insured on the OCP policy that Strauss agreed but
failed to purchase; therefore, under Mt. Hawley's interpretation
of Exhibit D, paragraph (b), the Met would not, in fact, have
enjoyed the benefit of the unshared limits that Mt. Hawley
contradictorily also claims motivated the Met to choose coverage
under an OCP policy rather than additional insured status under
Strauss's CGL policy.
                                II.
            Because I conclude that the Met was an additional
insured on Strauss's CGL policy, I reach the issue of whether Mt.
Hawley promptly notified the Met that it was disclaiming coverage
on account of untimely notice (see Insurance Law former § 3420
[d] [an insurer wishing to deny coverage on account of late
notice "shall give written notice as soon as is reasonably
possible of such disclaimer of liability and denial of coverage
to the insured and the injured person or any other claimant"]).


                                - 8 -
                               - 9 -                      No. 203

On February 3, 2009 Mt. Hawley stated, in a letter sent to
Travelers, that it was attempting to determine whether the Met
qualified as an additional insured under the policy.3   The word
"disclaim" does not appear in this letter, and the word "denial"
shows up only in the context of Strauss or the non-party Lincoln
Center.   As to the Met, Mt. Hawley advised Travelers that "we
need to determine whether Strauss Painting was actually involved
in this work in order to determine whether [the Met] is an
additional insured.   At this point in time, [Mt. Hawley] reserves
the right to assert that [the Met] is not an additional insured."
In its letter to Travelers dated March 4, 2009, with a copy to
the Met, Mt. Hawley stated that it was investigating how early
the Met was aware of the Mayo incident.   While this letter
recited the policy's notice conditions, it merely cautioned, in
the conditional tense, that "[s]hould the information that we
have been provided be correct, no coverage would apply" to the
Met (emphases added).
           In sum, the two letters constituted ineffective notice
because they did not disclaim coverage; instead, they reserved
the right to disclaim coverage in the future (see Hartford Ins.
Co. v. County of Nassau, 46 NY2d 1028 [1979] ["A reservation of
rights letter has no relevance to the question whether the


     3
      In this case, the Met did not raise the issue of whether an
insurer may validly disclaim coverage by sending written notice
to the insured's own carrier only (see Juan Sierra v 4401 Sunset
Park, LLC,    NY3d    [2014] [decided today]).

                               - 9 -
                                - 10 -                            No. 203

insurer has timely sent a notice of disclaimer of liability or
denial of coverage"]; Norfolk & Dedham Mut. Fire Ins. Co. v.
Petrizzi, 121 AD2d 276 [1st Dept 1986] ["A letter from an
insurance company to its policyholders which contains a
reservation of the insurance company's rights to disclaim
coverage under its policy is not such a notice of disclaimer as
to satisfy the requirements of the Insurance Law"]).         Because Mt.
Hawley never disclaimed for late notice, it waived the late
notice defense (see Hartford Ins. at 1029 ["A failure by the
insurer to give such notice as soon as it is reasonably possible
after it first learns of the accident or of grounds for
disclaimer of liability or denial of coverage, precludes
effective disclaimer or denial"]).
*   *   *   *   *   *   *   *     *      *   *   *   *   *    *     *   *
Order modified, without costs, by denying Metropolitan Opera
Association Inc.'s motion for summary judgment on its first cross
claim and, as so modified, affirmed, and certified question
answered in the negative. Opinion Per Curiam. Judges Graffeo,
Smith, Pigott, Rivera and Abdus-Salaam concur. Judge Read
dissents in part in an opinion in which Chief Judge Lippman
concurs.

Decided November 24, 2014




                                - 10 -
