Brother Jimmy's BBQ, Inc. v American Intl. Group, Inc.

Brother Jimmy's BBQ, Inc. v American Intl. Group, Inc. 2012 NY Slip Op 04296 Decided on June 5, 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 June 5, 2012
Mazzarelli, J.P., Sweeny, DeGrasse, Freedman, Richter, JJ.
7843 105077/09

[*1]Brother Jimmy's BBQ, Inc., et al., Plaintiffs-Respondents,

v

American International Group, Inc., et al., Defendants, Illinois National Insurance Company, Defendant-Appellant, Lauren Sclafani, Defendant-Respondent.




Sedgwick LLP, New York (Jessika Moon of counsel), for
appellant.
Garbarini & Scher, P.C., New York (William D. Buckley of
counsel), for Brother Jimmy's BBQ, Inc., Brother Jimmy's NYC
Restaurant Holdings, LLC, Brother Jimmy's Franchising, LLC,
Josh Leibowitz, Michael Daquino and Kevin Bulla, respondents.
Kramer, Dillof, Livingston & Moore, New York (Matthew
Gaier of counsel), for Lauren Sclafani, respondent.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered May 17, 2011, which granted plaintiffs' cross motion for summary judgment to declare that defendant insurer Illinois National Insurance Company (defendant), in its capacity as plaintiffs' excess carrier, was required to defend and indemnify plaintiffs in the underlying personal injury action once the primary insurance was exhausted, and denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The motion court correctly determined that defendant-appellant Illinois National Insurance Company's disclaimer of coverage was untimely. Regardless of the timeliness of plaintiffs' notice of claim, the ground alleged as support for disclaimer was clear from the face of the notice of claim and other documents submitted to Illinois National, making the 38-day delay before issuance of the notice of disclaimer unreasonable as a matter of law under Insurance Law § 3420(d) (see Matter of New York Cent. Mut. Fire Ins. Co. v Aguirre, 7 NY3d 772, 774 [2006]; [*2]e.g. George Campbell Painting v National Union Fire Ins. Co. of Pittsburgh, Pa., 92 AD3d 104 [2012]).

We have considered the remaining arguments and find them unavailing.

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

ENTERED: JUNE 5, 2012

CLERK