Hermitage Ins. Co. v Adamo

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Hermitage Ins. Co. v Adamo 2012 NY Slip Op 31904(U) July 12, 2012 Sup Ct, NY County Docket Number: 113469/10 Judge: Doris Ling-Cohan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. - SCANNED ON 711912012 [* 1] I Index Number : 11346912010 HERMITAGE INS. CO. VS. ADAMO, JOSEPH I . SEQUENCE NUMBER : 001 suMMARY JuD&ENT [* 2] e 3 b SUPREME COURT OF THE STATE OF NEW Y O N COUNTY OF NEW Y O N : IAS PART 36 X --------------------______l__r____rr____---------------------------- HERMITAGE INSURANCE COMPANY, Plaintiff, Index No.: 113469/10 DECISION/ORDER -againstMotion Sey. No. 001 JOSEPH L. ADAMO, ADRIANNB ADAMO, .IOSEPH I,. ADAMO, D.C. as tenant of METRO WNFkED JUDGMENT CHIROI'IIACTIC, P.C. and ANNA 'TSIMIS, --hind b n amred the m a W P Y ~ bwd IWrmnDefendants. and noyOe d antry m n o t mmin counsel or authorized Wre-Ve mi wpew h person at the Judgment cle*'s l%mk (m ¬ION. DORIS LING-COHAN, J.S.C.: 1410). In this declaratory judgment action, plaintiff moves for summary judgment on the complaint m, - - - _ - - - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ r _ _ _ _ _ _ _ _ _ _ _ _ _ _ - ~ - ~ ~ ~ ~ ~ ~ ~ - ~ - - - - - - - - - ~ - - - ~ ~ ~ (motion sequence number 001). For the following reasons, plaintiff's motion is granted, BACKGROUND This action was coinnienced by the plaintiff insurer, Hennitage Insurance Company (Hermitage), with respect to a related personal injurylnegligence action, which w s commenced by defendant a Anna Tsimis (Tsirnis), in the Supreme Cow? of the State of New York, County of Suffolk, captioned 7:cirni.v v Adamo, bearing Index Number 2458W 0 (the underlying action). See Notice of Motion, Kotlyarsky Affirmation, Exhibit A. Defendants ia this action, Joseph L.Adamo, Adrianne Adaino and Joseph I,. Adamo, D.C. tenant of Metro Chiropractic, P.C. (collectively, as the Adanio defendants), are the defendants in the underlying action. Id. :)tr r-., ' +Cy..'.', r# . ** '.'(' , . -4-q I I * a - I ; : ,u$: *? a' . ; ' , *^ L , . * '%. f, < . .:*, '* ' ..*: .:,,* ,,, , , c' ? . , .,*' ,.,,. - . .a*, The Adamo defendants own a commercial building and $e apphrtenahl parking lot located at .447 1 Express Drive North in Ronkonkoma, New York, where they operate Metro Chiropractic, P.C. See Notice of Motion, Kotlyarsky Affirmation, 7 3. Defendant Joseph Adamo is a chiropractor. The gravamen of the underlying action is that, on December 13, 2008, Tsimis 1 . y . Pd.* Qk ' 3. a', , ./ -, ?*. ..,a .-. P [* 3] s c 1 claims to have slipped and fallen on snow in the parking lot that the Adamo defendants had allegedly negligently failed to remove. Id, at 1 10. 1 Prior to the Tsimis accident, the Adamo defendants had obtained a commercial general liability insurance policy froin Hermitage, which was in effect from October 1, 2008 through October I , 2009 (the Hermitage policy). Id., 1 6. The relevant portions of the Heiinitage policy provide as 1 follows: Commeixial General Liability Coverage Form *** Section IV - Commercial General Liability Conditions *** 2 Uutics In the Event Of An Occurrence, Offense, Claim Or Suit a. You must see to it that we are notified as soon as or an practicable of an L ~cc~rrence offense which may result in a claim. To the extent possible, notice should include: How, when and where the (1) occurrence or offense took place; the names and addresses of any (2) injured persons or witnesses; and the name and location of any injury or (3) damage arising out of the ~ ~ ~ ~ r r e orcoffense. n e b. If a claim is made or suit is brought against any insured, you must: (1) Immediately record the specifics of the claim or suit and the date received; and Notify us as soon as practicable. (2) You must see to it that we receive written notice of the claim or suit as soon as practicable. C. You and any other involved insured must: (1) Immediately send us copies of any demands, notices, summ~nses legal or papers received in connection with 2 [* 4] the claim or suit; Authorize u s to obtain records and other information; Cooperate with us in the investigation or settlement of the claim or defcnse against the suit; and Assist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this insurance may also apply. d. No insured will, except at the insured s own cost, voluntarily make a payment, assume any obligation, OF incur any expense, other than for first aid, without our consent. Section V - Definitions 3. *** Bodily injury means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. +** 13. Qccurrence means an accident, including continuous or repeated exposure tQ substantially the same harmful conditions. *** 18. Suit means a civil proceeding in which damages because of bodily injury ,., to which this insurance applies are alleged, See Notice of Motion, Aptman Affidavit, Exhibit 1 As previously mentioned, I sirnis suffered her accident on December 13, 2008. In a written statement that Joseph Adamo prepared on August 11, 2010, with the assistance of one of Hermitage s investigators, Adamo states that while he did not witness the accident, one of his employees informed him of Tsimis s fall, right after it happened and 91 1 was called. See Notice of Motion, Indellicati Aflidavit, Exhibit 1. Adamo further indicates that he went outside and 3 [* 5] found Tsimis lying on the ground, crying and in pain ...holding her hip . Id. According to Adamo, Tsiniis informed him that she could not move her hip and could not stand. Adamo providcd Psimis some sheets, blankets and a pillow for her to lay down on while she waited for the ambulance, which took her away. Id. Dr. Adamo states that, after Tsimis s accident, he J continued to treat Tsimis s husband, for a year, and was informed by Tsimis husband that Tsmis was receiving medical treatment for injuries to her back and hip, as a result of the f d l . ld. Adamo indicates that despite learning of l simis accident on the day that it occurred, he did not notify his busiiicss liability insurance carrier, non party Keep Agency - of the accident until sometime in January 201 0, after he learned from Tsirnis husband that his wife might be pursing something , which was right before he abruptly ended his treatment with Adaino. fd, Adaino forwarded Tsiniis s subsequent summons and complaint to Hermitage when he received them in July of20lO. Id. Hermitage asserts, and it is not disputed that, the first and only notice that it received of Tsirnis s accident from the Adanio defendants was a fax, dated July 23, 20 IO, that included the sumnions and complaint in the undcrlying action. See Notice of Motion, Kotlyarsky Affirmation, 7 15. I tcrinitage notcs that this notification came 1 9 months after the date o ¬Tsirnis s accident. Id. As 8 resuli, on August 18 20 10, 1-lermitagesent the Adarno defendants a letter disclaimiug coverage with respect to the underlying action. See Notice of Motion, Aptman Affidavit, Exhibit 2. Thereafter, on October 8,2010, Hermitage cammenad the instant action by serving a summons and complaint that sets forth one cause of action for a declaratory judgment that it is not obligated 10 dcfend the Adamo defendants in the underlying action. See Notice of Motion, Kotiyarsky Affirmation, Exhibit B. In response, on December 2,2010, the Adamo defendants filed an answer 4 [* 6] that sets forth one counterclaim for a declaratory judgment that Hermitage is obligated to defwd them. Id.; Exhibit D. Now before the court is Hermitage s motion for sunimary judgment. DlS CU SSION When secking summary judgment, the moving party bears the burden of proving, by competent, admissible evidence, that no material and triable issues of fact exist. See e.g. Winegrud v NW , I York Univ. Med. Ctr., 64 NY2d 85 1 (1 985); Sokolow, Dunuud, Mercadier & C arrerus v Lucher, 299 AD2d 64 (1 st Dept 2002). Once this showing has been made, the burden shifts to the party opposing thc niotion to produce evidentiary proof, in admissible form, sufficient tQ establish the existence uC material issues of fact which require a trial of the action. See e.g. Zuckerrnan v Cify CJJ New York, 49 NY2d 557 (1 980); Pemberton v New York Cig Tr. Auth., 304 AD2d 340 (1 Dept 2003). As previously mentioned, Hermitage has asserted one claim for declaratory relief in this action. Declaratory judgment is a discretionary remedy which may be granted as to the rights and other legal relations of the parties to a justiciable controversy whether or not further rclief is or could be claimed. CPLR 3001; see e.g. Jenkins v State o f N . Y., Div.ofHous. and Community Renewal, 264 AD2d 68 1 (1 st Dept 1999). Further, it is well settled that: Lona iiiotion for summary judgment, the construction of an unambiguous contract s is a question of law for the court to p ~ s on, and ,.. circumstances extrinsic to the agreement qr varying interpretations of the contract provisions will not be considered, where ... tbe intention of the parties can be gathered from the instrument itself. Muysek 8 Mown v Warburg & Co., 284 AD2d 203,204 (1 Dept 2001), quoting Lake Constr. di Dev. C, orp. v City of New York, 21 1 AD2d 5 14, 5 15 (1 st Dept 1995). Here, as detailed below, I-Icrniitagc is entitled to the dcclaration that it seeks. 5 [* 7] Hermitage argues that, as a matter of law, the Adamo defendants unexcused 19-month delay in notifying it of Tsimis accident violated the Hermitage policy s requirement (reproduced supru), that the Adamo defendants serve such notification as soon as practicable, and, thereby, relieved klcmitage of its obligation to defend the Adamo defendants in Tsirnis s underlying actioo. This wurl agrees. In Great Canal Realty Corp. v Seneca Ins. Co., Inc. ( 5 NY3d 742, 743-744 [2005]), the Couo of .Appeals summarized the governing law as follows: Where a policy of liability insurance requires that notice of an occurrence be givcn &as soon as practicable, such notice must be accorded the carrier within a reasonable pcriod of time. Thc insured s failure to satis@ the notice requirement constitutes a failure to comply with a condition precedent which, as a matter of law, vitiates the contract, Hence, the carrier need iiot show prejudice before disclaiming based on the insured s failure to timely notify ii of an occurrence. We have recognized that there may be circumstances that excuse a failure to give timely notice, such as where the insured has a good-faith belief of nonliability, provided that belief is reasonable. But we have further explained that the insured s belief must be reasonable under all the circumstances, a i d it may be relevant on the issue of reasonableness, whether and to what extent, the insured has inquired into the circumstances of the accident or occurrence. Additionally, the insured bears the burden of establishing the reasonableness oi thc proffered excuse [internal citations omitted]. , As a gencral rule, unexcuscd delays of short duration have been held to be R breach of the insurance contract and a failure to comply with a conditioii precedent, as a matter of law. See I ~ L S Ov. London & /,iincashirc Indem. Co. oj Am., 3 NY2d 127, 129 (1957) (5 1 day delay); %-fL;r v. Government 1hple.s. Ins. Co., 254 AD2d 344, 345 (2ndDept 1998) (approximately six week * delay); Power Auth. qfState 0fN.I . v . Westinghouse Hec. Corp., 117 AD2d 336, 340 (1st Depl 1986) (53 day delay). 6 [* 8] Here, the undisputed delay in withholding notice to plaintiff of 19 months from the date al the accident, can hardly be considered as soon as practicable , in light ol that A d m o lcarned 01 the accident, moments after it occurred. See He& Contr. Corp. v. American Home Assur. Co., 146 AD2d 497,497-98 (1 Dept 1989) (delay in notifying the insurer in excess of four (4)months was held to be untimely, as a matter of law, where the insured was aware of the occurrence, in such casc il fire, on the day it occurred). Thus, the burden is on defendants to establish a reasonablc excuse for the failure to give pIaintiff insurer timely notice of the occurrence. See While v. Ci/y i f h f e w Y(~rk,81 NY2d 955, 957 (1993). In deteriiiining whether an insured s alleged excuse fo; delaying in notifying its insurer was reasonable, the issue is not whether the insured believas be will ultimately be iound liablc for thc injuryybut whether he has a reasonable belief that no claim will be asserted against him . SSBSS Rlty. Corp v. Pub. Serv. Mut. Ins. Co., 253 AD2d 583, 584 (1 Dept 1998)(citations omitted); .see d s o Hey& Ihntr. Corp. v. Am. Home Assur. Co., 146 AD2d at 499 (1 Dept 1989). It has been spcciikally held that the mere possibility of a claim triggers an insurcd s duty to notify. Heydl Contr. Corp. I), Am. Home Assur. C o . , 146 A D2d at 499. Based upon the within submissions and the undisputed facts, defendants have failed to satisfy their burden. As stated, Adama, the building owner, becarne aware ol Tsimis fall, almost iiiiincdiately after it occurred. Moreover, A d m o himself, went to the scenc of Tsiniis fall, and found her lying on the ground crying, and in pain ...holding her hip . See Notice of Motion, Ipdellicati Afiydavit, Exhibit 1. Tsimis informed Adamo that she was unable to stand and Adaino comlbrtcd her with sheets, blankets and pillows, while she waited for the ambulance to arrive. 7 [* 9] Moreover, Adamo was aware that Tsimis was taken away from the scene of her fall by ambulance. Additionally, after the accident, Adamo was informed by Tsiniis' husband that 'I'simis was in h c t receiving medical treatment for her back and hip, as a result of her fall. Where as here, thc insurcd is aware of an occurrence resulting in injury, requiring emergency medical attention and subsequent treatment, courts have consistently held that an insured's notification dclay is not excused. See SBSS Rlty. Corp, v. Pub. Serv. Mut. Ins. C'o., 253 AD2d at 584; New York Cent. Mut. ki 'w Ins. Co. v. Riley, 234 AD2d 279,279-80 (2nd Dept 1996); Snbaru Const. Corp. 17. AIU Ins. Co., 41 AD3d 245, 246 (lut Dept 2007); Paramount Ins. Co. v. Rosedale Gardens, Inc., 293 AD2d 235,239 (I" Dept 2002). While the Adamo defendants argue that the instant 19 month delay was excused because Adamo hud a reasonable belief that 'Tsirnis would not cornrnence suit against him because he did not see any fractures or cuts on her body when he saw her on the ground on the day of her accident, and that 'Tsirnis's husband ncvcr indicated that his wife was contemplating bringing suit in the ycar that Adamo continued to treat him after her accident, such,argument is contrary to the applicable case; law. As correctly argued by Hermitage, Adarno's belief that he would not be sued was not reasonable undcr thc circumstances, as the law requires that a person make some independent inquiry or investigation in order for his belief to be deemed reasonable. See G ~ uCanal Rip. t Corp v. Seneca Ins. Co., 5 NY3d at 743-44; Sec. Mut. Ins. Co. Of'NY v. Achr-E..'ttzsimrons Corp., 3 1 NY2d 436,441-42 (1972); York Specialty Food, Inc. v. Tower Ins. CO. qfNew York, 47 AD3d 589,590 (1 '' Dept 2008). It has been held that, it is the occurrence of an injury, not the cuniineiiccmciit 01' a pcrsonnl injury action, thst triggers an insured's obligation to provide notice according to thc term ofthe policy. See Greuf Canal Rlty. Corp, v. Seneca Ins. Ch.,5 NY3d at 8 [* 10] t % J 743; Kondule Rldg Corp. v. Nationwide Prop. rf; Cus. Ins.Co. 1 AD3d 584, 585-86 (2 ld Depl 2003)( a reasonable prudent insured would have concluded that there existed a strong possibility that a liability claim would be made due to the fact that the victim was removed from the scene by ambulance ) . A d a m , however, does not allege that he ever made any an inquiry of Tsimis s husband as to whethcr a claim was being pursued against him. See While v. City qf New York, 81, NY2d 955, 958 (1993)(stating that where a reasonable pgrson could envision liability, that person bas a duty to make some inquiry ). Thus, Adarno s allegation that he should be excused from notifying his insurer of l sirnis accident which he learned af, shortly after i t occurred, because Tsimis husband *e m i b) w dt. ncver told hiin that any sort of claim was going to be made againit nirn,%.not supported by case . I law, It is noted that Adamo never spoke with Tsimis herself, to inqiirelas to whether in fact she w s seriously injured, as a result of her fall, or: as to whether she would be asserting a claim. a Thus, based upon the above, I [eriniktge s motion summary judgmcnt on its claim for a declaratory judgu~ent its I avor is granted. in The court notes that whilc the parties were given an opportunity, by interim order, to submit cast: law on the issue of whether defendant took reasonable steps in further inquiring Into a potential claim under the within facts and circumstances, and in particular7 whether it is reasonablc for a licensed medical professional (ie dcfendant chiropractor) to rely on the results of hidher own invcstigation, in determining potential liability , defendants have not supplied any case law. 9 I . * [* 11] DECISION ACC:ORDINGT,Y, for the foregoing reasons, it is hereby ORDERED that the motion, pursuant to CPLR $3212, of plaintiff Hermitage Insurance Company is granted; and is l'urtlier Ai1JIJI)GED AND DECLARED that plaintiff Hermitage Insurance Company is not obligated to provide defendants Joseph L. Adamo, Adrianne Adaino, Joseph L. Adamo, D.C. (as tenant of Metro Chiropractic, P.C.) with a defense and indemnification in the action pending in the Supreme Co~irt the State of New York, County of Suffolk, captioncd Tsimis v Adamo and of bearing Index Number 24589/10 . A//";; lion. Doris Ling-Cohan, J.S.C. J:\Summnry Judgment\herinitagcvadamo.flip.wpd 10

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