         10-3853-cv
         Simon Property Group, L.P. v. Lumbermen’s Mut. Cas. Co.

                                 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 24th day of January, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                PETER W. HALL,
 8                SUSAN L. CARNEY,
 9                         Circuit Judges.
10
11
12
13       SIMON PROPERTY GROUP, L.P.,
14
15                                     Defendant-Third-Party Plaintiff-
16                                     Appellant,
17
18                      -v.-                                                10-3853-cv
19
20       LUMBERMEN’S MUTUAL CASUALTY COMPANY, BURNS
21       INTERNATIONAL SECURITY SERVICES CORPORATION,
22
23                                     Third Party Defendants-Appellees,
24
25       JAMES LENT,
26                                     Plaintiff
27
28                      -v.-
29
30       SIMON PROPERTY GROUP, INCORPORATED, SPG REALTY CONSULTANTS,
31       INCORPORATED, SPG REALTY CONSULTANTS, M.S. MANAGEMENT
32       ASSOCIATES, INCORPORATED, M.S. MANAGEMENT ASSOCIATES
33       (INDIANA), INCORPORATED, FASHION MALL PARTNERS L.P.,
34
35                                     Defendants,
 1
 2            and,
 3
 4   FASHION MALL PARTNERS L.P.,
 5
 6                     Third-Party-Plaintiff
 7
 8   BROOKSTONE COMPANY, INCORPORATED, PINKERTON'S INCORPORATED,
 9   WESTERN WORLD INSURANCE COMPANY, TUDOR INSURANCE COMPANY,
10
11                     Third-Party-Defendants.
12
13
14
15   FOR APPELLANT:    THOMAS S. NOVAK, Sills, Cummis & Gross,
16                     P.C., New York, NY.
17
18   FOR APPELLEES:    LAUREL A. WEDINGER, Barry, McTiernan &
19                     Moore, New York, NY.
20
21                     RUSSELL S. JAMISON, Marin Goodman, LLP
22                     Harrison, NY.
23
24        Appeal from the United States District Court for the
25   Southern District of New York (Robinson, J.).
26
27       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

28   AND DECREED that the judgment of the district court be

29   AFFIRMED.1


         1
          Asserting his reliance on Greenfield v. Philles
     Records, Inc., 780 N.E.2d 166, 170 (N.Y. 2002) (noting that
     a written agreement must be enforced according to its terms
     only where the agreement is “complete, clear and unambiguous
     on its face”), and Leon v. Lukash, 504 N.Y.S.2d 455, 455
     (N.Y. App. Div. 1986) (stating that the meaning of an
     ambiguous contract “presents a question of fact which may
     not be resolved by the court on a motion for summary
     judgment”), Judge Hall would vacate the grant of summary
     judgment for Burns on the grounds that in his view the word
     “occurrence” in the security services contract is ambiguous.
                                   2
1        Simon Property Group, L.P. (“Appellant”) appeals from a

2    judgment of the United States District Court for the

3    Southern District of New York (Robinson, J.), which granted

4    summary judgment in favor of Appellees, Burns International

5    Security Services Corporation (“Burns”) and Lumbermen’s

6    Mutual Casualty Company (“Lumbermen’s”).   We assume the

7    parties’ familiarity with the underlying facts, the

8    procedural history, and the issues presented for review.

9        We review a grant of summary judgment de novo.     McBride

10   v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir.

11   2009).   “Summary judgment is appropriate where there exists

12   no genuine issue of material fact and, based on the

13   undisputed facts, the moving party is entitled to judgment

14   as a matter of law.”   Fed. Ins. Co. v. Am. Home Assurance

15   Co., 639 F.3d 557, 566 (2d Cir. 2011) (internal quotation

16   marks omitted); see also Fed. R. Civ. P. 56(a).   We also

17   review de novo whether a contract is ambiguous under New

18   York law.   Bank of N.Y. v. First Millennium, Inc., 607 F.3d

19   905, 914 (2d. Cir. 2010).

20       Here, we find no error in the district court’s grant of

21   summary judgment for Appellee Burns.   The security agreement

22   between Burns and Appellant stipulates that the parties must


                                   3
1    initiate proceedings within twelve months of “the date of

2    the occurrence giving rise to such Claim.”       The agreement

3    imposes an indemnification obligation on Burns only in case

4    of Burns’s negligence and without regard to whether suit was

5    filed against Appellant.   In this context, the operative

6    phrase was sufficiently clear to read the limitations period

7    as running from the incident involving Burns’s alleged

8    negligence—here, the assault.       Appellant failed to initiate

9    any proceedings against Burns until three years after this

10   occurrence; therefore, Appellant was contractually barred

11   from bringing the instant claim against Burns.

12       Likewise, we find no error in the district court’s

13   grant of summary judgment for Appellee Lumbermen’s.       Under

14   New York law, “compliance with a policy’s notification

15   provisions is a condition precedent to the insurer's

16   liability under the policy.”    Webster ex rel. Webster v.

17   Mount Vernon Fire Ins. Co., 368 F.3d 209, 214 (2d Cir.

18   2004).   Without a valid excuse, “an insured’s failure to

19   provide timely notice of a claim to its excess insurer is a

20   complete defense to coverage, regardless of whether the

21   carrier was prejudiced by the late notice.”       Green Door

22   Realty Corp. v. TIG Ins. Co., 329 F.3d 282, 287 (2d Cir.


                                     4
1    2003)     (citing Am. Home Assurance Co. v. Int'l Ins. Co., 684

2    N.E.2d 14, 16 (N.Y. 1997)).

3           The insured bears the burden of proving reasonableness

4    of delayed notice and must exercise reasonable care and

5    diligence in keeping itself informed of accidents out of

6    which claims for damages may arise.     Sec. Mut. Ins. Co. of

7    N.Y. v. Acker-Fitzsimons Corp., 293 N.E.2d 76, 78-79 (N.Y.

8    1972).     A good-faith belief by the insured that an incident

9    does not trigger coverage under its insurance policy “may

10   excuse or explain a seeming failure to give timely notice.”

11   Id. at 79.     While the question of the reasonableness to give

12   timely notice is generally a question of fact under New York

13   law, “a delay may be unreasonable as a matter of law when

14   either no excuse is advanced or the proffered excuse is

15   meritless.”     Olin Corp. v. Ins. Co. of N. Am., 966 F.2d 718,

16   724 (2d Cir. 1992).

17          Here, Lumbermen’s commercial general liability policy

18   required Appellant, as additional insured, to give notice

19   “as soon as practicable” of an occurrence that may result in

20   a claim.     Appellant’s three year delay in providing notice

21   of the underlying assault is unreasonable as a matter of

22   law.     Appellant cannot claim it was unaware of the incident


                                     5
1    at the time of its occurrence because it received a report

2    of the assault from its security company, Burns, on the day

3    of the assault.   See    Travelers Ins. Co. v. Volmar Const.

4    Co., Inc., 300 A.D.2d 40, 43 (N.Y. App. Div. 2002).

5    Furthermore, the unusual nature of one aspect of the

6    victim’s injury, discovered fifteen months after the

7    incident, does not alone justify delay.     See Olin Corp., 966

8    F.2d at 723-24 (“[I]t does not follow that an insured is

9    obligated to provide the insurer notice of an occurrence

10   only when it learns of a particular identified injury.”).

11   On the facts of this case, we cannot find that Appellant’s

12   provision of notice only after initiation of the underlying

13   lawsuit is reasonable.

14       For the foregoing reasons, the judgment of the district

15   court is hereby AFFIRMED.

16
17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20




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