Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co.

Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co. 2007 NY Slip Op 07317 [44 AD3d 307] October 2, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

Bovis Lend Lease LMB, Inc., et al., Respondents,
v
Royal Surplus Lines Insurance Company, Appellant, et al., Defendant. Millennium Masonry, Inc., Third-Party Plaintiff-Respondent, v Royal Surplus Lines Insurance Company, Third-Party Defendant-Appellant, and Professional Risk Managers, Inc., Third-Party Defendant-Respondent, et al., Third-Party Defendant.

—[*1] Coughlin Duffy LLP, New York (Daniel F. Markham of counsel), for appellant.

Newman Fitch Altheim Myers, P.C., New York (Howard B. Altman of counsel), for Bovis Lend Lease LMB, Inc., 455 Central Park West, L.L.C. and National Union Fire Insurance Company of Pittsburgh, Pa., respondents.

Alvy & Tablante, LLP, Lake Success (Norman D. Alvy of counsel), for Millennium Masonry, Inc., respondent.

Fiedelman & McGaw, Jericho (Dawn C. DeSimone of counsel), for Professional Risk Managers, Inc., respondent.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered June 1, 2006, which, to the extent appealed from, granted the motion of third-party plaintiff Millennium Masonry, Inc. (Millennium) for summary judgment on its third cause of action against defendant/third party defendant Royal Surplus Lines [*2]Insurance Company (Royal) declaring that Royal is obligated to defend and indemnify Millennium in the underlying personal injury action and to reimburse Millennium for its defense costs, and order, same court and Justice, entered November 30, 2006, which denied Royal's motion for leave to renew, unanimously affirmed, with costs.

The court properly determined that the 37-day delay between Royal's receipt of the report from its investigator detailing the accident involving Millennium's employee and its letter disclaiming coverage was unreasonable as a matter of law (Insurance Law § 3420 [d]). The reasons for Royal's disclaimer were readily apparent from the documents delivered to Royal, including the notice of claim and the investigation report (see 2833 Third Ave. Realty Assoc. v Marcus, 12 AD3d 329 [2004]; West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278 [2002], lv denied 98 NY2d 605 [2002]).

The court also properly denied Royal's motion for leave to renew. The report from Royal's investigator does not constitute new evidence that would change the prior determination (CPLR 2221 [e] [2]), and Royal's explanation that it did not initially submit the report because it believed it was not discoverable, was not reasonable (CPLR 2221 [e] [3]; see Roman Catholic Church of Good Shepherd v Tempco Sys., 202 AD2d 257 [1994]). Concur—Lippman, P.J., Tom, Nardelli, Gonzalez and Kavanagh, JJ.