Parkview Owners, Inc. v DF Restoration, Inc.

Parkview Owners, Inc. v DF Restoration, Inc. 2012 NY Slip Op 02772 Decided on April 12, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 12, 2012
Mazzarelli, J.P., Catterson, DeGrasse, Manzanet-Daniels, Román, JJ.
7359N 104584/10

[*1]Parkview Owners, Inc., et al., Plaintiffs-Respondents,

v

DF Restoration, Inc., Defendant-Respondent, Interstate Fire & Casualty, etc., et al., Defendants, RSUI Indemnity Company, Defendant-Appellant.




Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Eric
D. Suben of counsel), for appellant.
Malapero & Prisco LLP, New York (Andrew L. Klauber of
counsel), for Parkview Owners, Inc., Hudson River Property
Management Corp. and Philadelphia Indemnity Insurance
Company, respondents.
Lester Schwab Katz & Dwyer, LLP, New York (Steven B.
Prystowsky of counsel), for DF Restoration, Inc., respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 26, 2011, which denied defendant RSUI Indemnity Company's motion for leave to amend its answer, unanimously affirmed, with costs.

Defendant waited more than one year from the date on which it received notice of the claim against its insured to assert a disclaimer based on the policy exclusion for residential projects. This unexplained delay was unreasonable as a matter of
law (see Insurance Law § 3420[d]; Agoado Realty Corp. v United Intl. Ins. Co., 260 AD2d 112, 118 [1999], mod on other grounds 95 NY2d 141 [2000]). Thus, although leave to amend a [*2]pleading "shall be freely given" (CPLR 3025[b]), the residential project exclusion "[can] not be used as an affirmative defense because of its late assertion and the strictures of Insurance Law § 3420(d)" (Agoado Realty Corp., 95 NY2d at 146 n).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 12, 2012

CLERK