Fook Cheung Lung Realty Corp. v Yang Tze Riv. Realty Corp.

Fook Cheung Lung Realty Corp. v Yang Tze Riv. Realty Corp. 2012 NY Slip Op 02793 Decided on April 17, 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 17, 2012
Andrias, J.P., Friedman, Moskowitz, Freedman, Manzanet-Daniels, JJ.
7380 106519/06 590177/07 590083/08 590384/09 590929/09

[*1]Fook Cheung Lung Realty Corp., Plaintiff,

v

Yang Tze River Realty Corp., et al., Defendants. [And Third Party Actions] J & A Concrete Corp., et al., Third Third-Party Plaintiffs-Respondents, QBE Insurance Corporation, Third Third-Party Defendant-Appellant.




Abrams, Gorelick, Friedman & Jacobson, P.C., New York
(Thomas R. Maeglin of counsel), for appellant.
Law Offices of Jeffrey S. Shein & Associates, P.C., Syosset
(Charles R. Strugatz of counsel), for respondent.

Order and judgment, Supreme Court, New York County (Joan A. Madden, J.), entered April 27, 2010, granting J & A Concrete Corp.'s motion for summary judgment declaring that QBE Insurance is obligated to defend and indemnify it in an underlying property damage action, unanimously affirmed, with costs.

J & A provided its insurer with notice of plaintiff's property damage claim within a reasonable time (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). J & A made a prima facie showing on its motion through the affidavit of its vice president stating the date that J & A arrived at the construction site and the extent of its duties and denying knowledge of the property damage until J & A's receipt of an attorney's letter in May of 2007, coupled with the deposition testimony of plaintiff's president regarding the date he first noticed the damage, which was before J & A's arrival. QBE's claim in opposition that J & A had knowledge of the damage before May of 2007 failed to raise an issue of fact, as evidence of conversations between plaintiff's president and a representative of the general contractor working at the adjoining premises and of complaints to the Department of Buildings would not necessarily have put J & A on notice, and it is mere conjecture that J & A was in fact told by others [*2]of the damage. QBE's claimed need for discovery to oppose the motion reflected an ineffectual mere hope (see MAP Mar. Ltd. v China Constr. Bank Corp., 70 AD3d 404 [2010]). In view of the foregoing, we also find that the determination as to the duty to indemnify was not premature.

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

ENTERED: APRIL 17, 2012

CLERK