

Endurance Am. Specialty Ins. Co. v Utica First Ins. Co. (2015 NY Slip Op 02706)





Endurance Am. Specialty Ins. Co. v Utica First Ins. Co.


2015 NY Slip Op 02706


Decided on March 31, 2015


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 March 31, 2015

Friedman, J.P., Renwick, Moskowitz, Richter, Clark, JJ.


14678 650703/13

[*1] Endurance American Specialty Insurance Company, et al., Plaintiffs-Appellants,
vUtica First Insurance Company, Defendant-Respondent, CFC Contractor Group, Inc., Defendant.


White Fleischner & Fino, LLP, White Plains (Janet P. Ford of counsel), for appellants.
Farber Broocks & Zane, LLP, Garden City (Sherri N. Pavloff of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Manuel J. Mendez, J.), entered November 22, 2013, inter alia, declaring that defendant Utica First Insurance Company has no duty to defend or indemnify plaintiffs in the underlying lawsuit, unanimously affirmed, with costs.
Utica's disclaimer of liability for coverage by letter dated November 21, 2011 to its named insured, defendant CFC Contractor Group, Inc., did not constitute notice to additional insured plaintiff Adelphi Restoration Corp. pursuant to Insurance Law § 3420(d)(2) (see Sierra v 4401 Sunset Park, LLC, 24 NY3d 514 [2014]). However, its January 29, 2013 disclaimer of liability to Adelphi was not unreasonably late in light of its uncontroverted statement in the disclaimer letter that it did not receive the written contract between CFC and Adelphi until January 28, 2013 (see Structure Tone v Burgess Steel Prods. Corp., 249 AD2d 144 [1st Dept 1998]). Plaintiffs contend that the disclaimer was unreasonably late because the exclusion for employees of an insured on which it was based was apparent from the face of multiple earlier tenders. However, Adelphi's additional insured status was conferred by a blanket additional insured endorsement, i.e., for any entity that CFC was required by a written contract to name as an additional insured; Adelphi was not named in the policy, and was required to prove its status by providing a copy of its written contract with CFC. Plaintiffs acknowledge that Utica "conducted an investigation as to Adelphi's status as an additional insured on its policy, and only [*2]when it confirmed that Adelphi was an additional insured did it issue its coverage position for Adelphi's tender." Indeed, Utica issued its disclaimer the day after it received the CFC/Adelphi contract.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 31, 2015
CLERK


