Spartacus Sch. of Sports, Inc. v Nationwide Mut. Ins. Co.

Spartacus Sch. of Sports, Inc. v Nationwide Mut. Ins. Co. 2012 NY Slip Op 09046 Decided on December 26, 2012 Appellate Division, Second 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 26, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DANIEL D. ANGIOLILLO, J.P.
RUTH C. BALKIN
PLUMMER E. LOTT
SHERI S. ROMAN, JJ.
2011-11103
(Index No. 3179/10)

[*1]Spartacus School of Sports, Inc., respondent,

v

Nationwide Mutual Insurance Company, appellant.




Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin
A. Donnelly, Sarah M. Ziolkowski, and David Zegarelli of counsel),
for appellant.


DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in three underlying actions entitled Salas v Spartacus School of Sports, Inc., Obolensky v Reasen, and Furman v Spartacus School of Sports, Inc., all commenced in the Supreme Court, Kings County, under Index Nos. 30130/08, 23146/08, and 12341/08, respectively, the defendant appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated October 28, 2011, which denied its motion for summary judgment, in effect, declaring that it is not obligated to defend or indemnify the plaintiff in the underlying actions.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant is not obligated to defend or indemnify the plaintiff in the underlying actions.

The plaintiff, Spartacus School of Sports, Inc. (hereinafter Spartacus), was insured under commercial general liability insurance policies (hereinafter the policies) issued by the defendant, Nationwide Mutual Insurance Company (hereinafter Nationwide). The policies required that Spartacus notify Nationwide of certain defined events "as soon as practicable." After being named as a defendant in three actions, entitled Salas v Spartacus School of Sports, Inc., Obolensky v Reasen, and Furman v Spartacus School of Sports, Inc., all commenced in the Supreme Court, Kings County, Spartacus sought coverage under the policies. Nationwide disclaimed coverage with respect to each action, in part on the ground that Spartacus had not complied with the policies' notice provisions. Spartacus then commenced this action seeking, among other things, a judgment declaring that Nationwide is obligated to defend and indemnify it in each underlying action. Nationwide interposed counterclaims seeking a judgment declaring that it is not obligated to defend or indemnify Spartacus in the underlying actions. Nationwide eventually moved for summary judgment, in effect, declaring that it is not obligated to defend or indemnify the plaintiff in the underlying actions. The Supreme Court denied the motion, and Nationwide appeals.

Nationwide established its prima facie entitlement to judgment as a matter of law declaring that it is not obligated to defend or indemnify Spartacus in the underlying actions. In support of its motion, Nationwide submitted evidence demonstrating that Spartacus failed to comply [*2]with the policies' requirements that it provide Nationwide with notice of the occurrences at issue in each of the underlying actions, and of the actions themselves, as soon as practicable, thus vitiating coverage (see Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 337; AH Prop., LLC v New Hampshire Ins. Co., 95 AD3d 1243, 1244; SP & S Assoc., LLC v Insurance Co. of Greater N.Y., 80 AD3d 529, 529). In opposition, Spartacus failed to raise a triable issue of fact (see AH Prop., LLC v New Hampshire Ins. Co., 95 AD3d at 1244; SP & S Assoc., LLC v Insurance Co. of Greater N.Y., 80 AD3d at 529). Accordingly, the Supreme Court should have granted Nationwide's motion.

In light of our determination, we need not reach Nationwide's remaining contention.

Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that Nationwide is not obligated to defend or indemnify Spartacus in the underlying actions (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
ANGIOLILLO, J.P., BALKIN, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court