Macro Enters., Ltd. v QBE Ins. Corp.

Macro Enters., Ltd. v QBE Ins. Corp. 2007 NY Slip Op 06801 [43 AD3d 728] September 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 7, 2007

Macro Enterprises, Ltd., Appellant,
v
QBE Insurance Corp., Respondent.

—[*1] Sesti & Associates, PC, New York (Robert A. Sesti of counsel), for appellant.

Mendes & Mount, LLP, New York (Robert J. Brown of counsel), for respondent.

Order, Supreme Court, New York County (Carol Edmead, J.), entered April 11, 2007, which, insofar as appealed from, denied plaintiff's motion for summary judgment, and granted defendant's cross motion for summary judgment and declared that plaintiff is not entitled to a defense and indemnity coverage in the underlying third-party action, unanimously affirmed, without costs.

The court properly granted defendant's cross motion for summary judgment. Plaintiff's failure to notify defendant for more than two years of the underlying occurrence, in which plaintiff's employee was injured in a construction site accident, constituted noncompliance with the condition precedent to coverage and vitiated the contract of insurance (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). Plaintiff's claimed belief of nonliability, on the basis that its injured employee's exclusive remedy was under the Workers' Compensation Law, was not reasonable under the circumstances (cf. Tesler v Paramount Ins. Co., 220 AD2d 334 [1995]). Concur—Lippman, P.J., Mazzarelli, Sullivan, Nardelli and Sweeny, JJ.