This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 214 SSM 17
Estee Lauder Inc.,
            Respondent,
        v.
OneBeacon Insurance Group, LLC,
et al.,
            Appellants.




          Submitted by Harry Lee, for appellants.
          Submitted by John W. Schryber, for respondent.
          Century Indemnity Company, amicus curiae.




MEMORANDUM:
          The order of the Appellate Division should be reversed,
with costs, the order of Supreme Court reinstated, and the
certified question answered in the negative.
          Analyzing the circumstances under the common-law waiver


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                                 - 2 -                       SSM No. 17

standard, which requires an examination of all factors,
defendants cannot be said to have waived their right to assert
the late-notice defense as a matter of law by failing to
specifically identify late notice in their disclaimer letters.
Defendants identified the late-notice defense in early
communications with plaintiff before relying on a reservation of
rights in two disclaimer letters.     "[U]nder common-law
principles, triable issues of fact exist whether defendants
clearly manifested an intent to abandon their late-notice
defense" (Keyspan Gas E. Corp. v Munich Reins. Am., Inc., 23 NY3d
583, 591 [2014]).   Accordingly, Supreme Court properly granted
defendants' motion for leave to amend their answer to reassert
the affirmative defense of late notice.
*   *   *   *   *    *   *   *    *      *   *   *   *   *   *   *   *
On review of submissions pursuant to section 500.11 of the Rules
(22 NYCRR 500.11), order reversed, with costs, order of Supreme
Court, New York County, reinstated, and certified question
answered in the negative, in a memorandum. Chief Judge DiFiore
and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia
concur.

Decided September 15, 2016




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