Board of Mgrs. of the 1235 Park Condominium v Clermont Specialty Mgrs., Ltd.

Board of Mgrs. of the 1235 Park Condominium v Clermont Specialty Mgrs., Ltd. 2009 NY Slip Op 09148 [68 AD3d 496] December 10, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Board of Managers of the 1235 Park Condominium et al., Appellants,
v
Clermont Specialty Managers, Ltd., et al., Respondents.

—[*1] Turek Roth Mester LLP, New York (Charles L. Mester of counsel), for appellants.

White Fleischner & Fino, LLP, New York (Nancy Davis Lyness of counsel), for respondents.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 10, 2008, which, upon the parties' motions for summary judgment, declared that defendants (collectively, the insurer) have no duty to defend and indemnify plaintiffs (collectively, the insured) in an underlying action for personal injuries sustained by a worker on the insured's premises, unanimously affirmed, without costs.

The worker was taken to the hospital by ambulance after falling off a ladder while installing a water tank on the roof of the insured's building; the insured immediately learned of the accident; and the insured's notice of claim was admittedly untimely. The insured argues that the untimeliness should be excused because it had a reasonable, good faith belief that no claim would be asserted against it, based on a phone call it made to the worker's employer on the day of the accident in which it was informed that the worker was not admitted to the hospital, did not sustain any serious injuries, and was expected to return to work the next day. Given the nature of the work that the worker was performing and the insured's knowledge that the worker had fallen off a ladder and been taken to the hospital by ambulance, this single phone call on the day of the accident was not an adequate inquiry into the circumstances of the accident and its outcome, and, as a matter of law, could not have caused the insured to reasonably believe that there was no reasonable possibility of the policy's involvement (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 744 [2005]; Paramount Ins. Co. v Rosedale Gardens, 293 AD2d 235, 239-240 [2002]; SSBSS Realty Corp. v Public Serv. Mut. Ins. Co., 253 AD2d 583, 585 [1998]). Nor is there merit to the insured's argument that the recent amendment to Insurance Law § 3420 (a) adding paragraph (5) (L 2008, ch 388, § 2 [eff Jan. 17, 2009]), requiring a showing of prejudice before an insurer denies coverage on the ground of untimely notice, applies retroactively to the instant 2003 policy; the amendment expressly applies to policies issued on or after its effective date (id. at § 8; see Safeco Ins. Co. of Am. v Discover Prop. & Cas. Ins. Co., 2009 WL 436329, *5 n 3, 2009 US Dist LEXIS 18735, *14 n 3 [SD NY 2009]). Concur—Gonzalez, P.J., Friedman, McGuire, DeGrasse and Manzanet-Daniels, JJ.