Castlepoint Ins. Co. v Mike's Pipe Yard & Bldg. Supply Corp.

Castlepoint Ins. Co. v Mike's Pipe Yard & Bldg. Supply Corp. 2012 NY Slip Op 08644 Decided on December 13, 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 December 13, 2012
Tom, J.P., Sweeny, Moskowitz, Renwick, Clark, JJ.
8790 113048/09

[*1]Castlepoint Insurance Company, Plaintiff-Respondent,

v

Mike's Pipe Yard and Building Supply Corp., Defendant, Damon Haindl, Defendant-Appellant.




Avanzino & Moreno, P.C., Brooklyn (Oliver R. Tobias of
counsel), for appellant.
Law Office of Steven G. Fauth, LLC, New York (Suma Samuel
Thomas of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered November 16, 2011, which, upon renewal and reargument, granted plaintiff Castlepoint Insurance Company's motion for summary judgment to declare that Castlepoint did not have an obligation to indemnify or defend defendant Mike's Pipe Yard and Building Supply Corp. (Mike's) in an underlying personal injury action brought by defendant Damon Haindl, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting Castlepoint's motion to renew and reargue its prior motion (see e.g. Meija v Nanni, 307 AD2d 870 [1st Dept 2003]). Castlepoint correctly argued that Mike's could not demonstrate the reasonableness of its delay in reporting the accident leading to Haindl's injury (Paramount Ins. Co. v Rosedale Gardens, 293 AD2d 235, 240 [1st Dept 2002]). Mike's principal knew of the accident the day it occurred and of the potential for litigation almost immediately thereafter. In addition, the arguments it made in opposition to the initial motion for summary judgment had been previously rejected in a similar action (Tower Ins. Co. of N.Y. v Mike's Pipe Yard & Bldg. Supply Corp., 35 AD3d 275 [1st Dept 2006]), making it unreasonable for Mike's to think they would suffice to excuse late notice to its [*2]insurer in the instant action.

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: DECEMBER 13, 2012

CLERK