Quality Bldg. Contr., Inc. v Delos Ins. Co.

[*1] Quality Bldg. Contr., Inc. v Delos Ins. Co. 2012 NY Slip Op 50448(U) Decided on March 8, 2012 Supreme Court, New York County Edmead, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 8, 2012
Supreme Court, New York County

Quality Building Contractor, Inc., Plaintiff,

against

Delos Insurance Company f/k/a Sirius America Insurance Company and Utica First Insurance Company, Defendants.



106516/2011



Attorneys for Plaintiff, Quality Building Contractor, Inc.

CARROLL McNULTY & KULL, LLC

By Erik J. Pedersen and

Douglas K. Eisenstein

570 Lexington Avenue

New York, NY 10022

Tel: (212) 252-0004

Attorneys for Defendant, Delos Insurance Company, et al.

WHITE, QUINLAN & STALEY

By Christopher M. Otton

377 Oak Street

P.O. Box 9304

Garden City, New York 11530

Tel: (516) 222-2434.

Carol R. Edmead, J.

MEMORANDUM DECISION

In this declaratory judgment action, plaintiff Quality Building Contractors, Inc. ("QBC") moves for summary judgment (CPLR 3212) against defendant Delos Insurance Company f/k/a Sirius America Insurance Company ("Sirius"), declaring that Sirius is obligated to defend and indemnify QBC for all claims asserted in the underlying personal injury lawsuit.

Factual Background

This action arises out of an incident that allegedly occurred on April 8, 2005, at 24 Fifth Avenue, New York, New York (the "premises"), owned by 24 Fifth Owners, Inc. ("24 Fifth Owners"). The following facts are undisputed.

24 Owners hired QBC to perform construction services at the premises. QBC [*2]subcontracted portions of its work to Vanlo, Inc. ("Vanlo"), the employer of the injured plaintiff Enri Orozco ("Orozco"), pursuant to a written contract (the "QBC/Vanlo subcontract"). The Vanlo/QBC subcontract contained, among other things, an indemnity provision, which required Vanlo to indemnify and hold harmless QBC and 24 Fifth Owners, and an insurance procurement provision for the benefit of QBC. On or about November 14, 2006, Orozco brought a personal injury action against 24 Fifth Owners[FN1] and subsequently amended the complaint, joining QBC as the defendant (the "Orozco claim"). QBC claims it was never served with the original complaint.

At the time of Orozco's incident, QBC had a general liability coverage insurance policy issued by Sirius, number IRS400468, effective from June 1, 2004, to June 1, 2005 (the "Sirius/QBC policy"). The policy named 24 Fifth Owners as an additional insured.

At all relevant times, QBC's subcontractor Vanlo held a general liability policy issued by Utica (the "Utica/Vanlo policy"), which named QBC as an additional insured (Utica/Vanlo policy number ART125652000 effective from July 27, 2004 to July 27, 2005).

By letter dated January 4, 2007, 24 Fifth Owners's insurance carrier Greater New York Insurance Company ("GNY") requested that Sirius provide coverage for 24 Fifth Owners as an additional insured under the Sirius/QBC policy (exhibit C to motion). The letter informed Sirius that the date of accident was April 8, 2005, and that the injured plaintiff was an employee of QBC's subcontractor Vanlo, Inc. (exhibit C to motion).

On or about January 8, 2007, GNY's January 4, 2007 letter to Sirius was faxed to Sirius' insured, QBC. This was the first time QBC learned of the Orozco claim. However, QBC did not send notice of the Orozco claim to its insurer, Sirius, at that time.

Based on the information received from GNY, and although not notified formally by QBC of the claim, Sirius's claims' adjuster UTC Risk Management Services ("UTC") retained on January 17, 2007, United Claims Service, Inc. ("United") to, inter alia, investigate the issues of QBC's late notice and potential application of the exclusion of coverage pursuant to the endorsement SAIC 022 (12/03) (the "exclusion endorsement").[FN2]

On January 23, 2007, Sirius disclaimed coverage to 24 Fifth Owners as QBC's additional insured, based on late notice.

On or about January 25, 2007, QBC's counsel provided notice of the Orozco claim to [*3]Sirius. On January 30, 2007, QBC's president Russell Galindo met with United's investigator and on January 31, 2007, UTC (and Sirius) received an e-mail report from United containing Galindo's statement that QBC first received notice of Orozco's April 8, 2005 incident, on January 8, 2007, and that it then immediately notified their insurance carrier. Galindo also stated that QBC did not have any employees conducting work at the above location and did not directly supervise any of the employees of its subcontractor Vanlo. On February 7, 2007, Sirius received the official version of the January 31 e-mail report from United. The report included QBC/Vanlo subcontract and insurance certificates of Vanlo and indicated that QBC was as an additional insured under Utica/Vanlo policy. On the same day, Sirius requested, on behalf of QBC, coverage from Utica pursuant to the indemnity clause in the QBC/Vanlo subcontract and based on QBC's status as an additional insured.

By letter dated February 15, 2007, Sirius's claim adjuster informed QBC that it would "investigate and adjust" QBC's claim.

On March 7, 2007, Utica denied coverage to Vanlo and QBC based on untimely notice to Utica, an employee exclusion and an exclusion pertaining to [assumed] contractual liability.

On March 21, 2007, Sirius denied coverage to QBC based on QBC's untimely notice to Sirius and the exclusion endorsement (exhibit G). QBC subsequently commenced this declaratory judgment action and now moves for summary judgment in its favor.

In support of its motion, QBC argues that Sirius is estopped from denying coverage of this claim, pursuant to Insurance Law §3420 (d), because its disclaimer was untimely and therefore, ineffective. Sirius knew or should have known of the basis for denying coverage to QBC for more than 72 days and no less than 55 days, but did not issue a disclaimer or notify QBC that its investigation of the claim was subject to a reservation of rights to disclaim coverage, as required by the Insurance Law §3420 (d). Sirius had sufficient information to determine that it would disclaim coverage [based on late notice] as early as January 8, 2007, when it was notified by GNY on behalf of 24 Fifth Owners, of the Orozco claim. Instead, several weeks later, on February 15, 2007, Sirius "merely advised" QBC that it retained UTC "to investigate and adjust" the Orozco claim (exhibit E), and delayed issuing the disclaimer for another 34 days, until March 21, 2007 (exhibit G).

In opposition, Sirius argues that QBC's motion should be denied on several grounds.

First, QBC cannot demonstrate that it provided timely notice to Sirius or complied with the requirements of the exclusion endorsement because it relies on inadmissible evidence, i.e., - an affidavit of an attorney without personal knowledge of the matter, an unsworn and unsigned statement by QBC's president Russel Galindo, unverified pleadings and unauthenticated documents.

Second, QBC's motion is premature due to outstanding disclosure. QBC did not provide responses to Sirius's notice for discovery and inspection and it failed to produce a trial witness.

Further, any untimeliness of its disclaimer should be excused based on Sirius's need to investigate the timeliness of QBC's notice to Sirius and the applicability of the exclusion endorsement. In order to determine the applicability of the endorsement, Sirius had to first investigate the identity of QBC's subcontractor and its carrier and whether Vanlo "had in place" general liability coverage, which included coverage for injuries to its employees and contractual liability claims. Ultimately, Sirius denied coverage to QBC because of Utica's denial of coverage [*4]toQBC as an additional insured under Utica/Vanlo policy, which, in turn, "triggered" the application of the exclusion endorsement for QBC under Sirius/QBC policy.

Sirius also contends that its delay is partially attributable to QBC's failure to schedule a meeting with United's claim investigator "prior to January 30, 2007" (see Christopher M. Otton, Esq. affirmation in opposition, ¶33).

In reply, QBC argues that its counsel can attest to the authenticity of the documents and the facts on which he relies in his affirmation in support of this motion. Furthermore, the documents submitted by QBC in support of its motion were prepared or received by Sirius or its agent UTC in the course of its investigation of QBC's and 24 Fifth Owners' claims.

Whether QBC showed that it complied with the policy's notice requirement or the exclusion endorsement is irrelevant, since Sirius's disclaimer was untimely in the first place, and thus, ineffective to disclaim coverage to QBC. Sirius had all of the information required to deny coverage to QBC or reserve its rights or based on notice as early as January 31, 2007, and Sirius knew that the subject exclusion endorsement may apply as early as January 17, 2007, when it retained United to perform an investigation into the applicability of the endorsement. Therefore, at minimum, Sirius delayed for 55 days the issuance of its disclaimer to QBC.

Furthermore, argues QBC, Sirius and UTC knew that Utica First would deny coverage to QBC, which would in turn, trigger the exclusion provision in Sirius/QBC policy. Incidentally, in an unrelated action, Board of Managers of the Dorchester Towers Condominium v Delos Insurance Company f/k/a Sirius America Insurance et al., Index No. 116551/2007 (Madden, J.), which also involved issues of Sirius's coverage of QBC, UTC's assistant vice president John Purpura testified at his deposition that, as a general matter, "98 percent of the time [insurance carriers] do not cover injuries to employees and/or contractual coverage" and, therefore, the SAIC 022 (12/03) exclusion was almost certain to apply to QBC's tender (exhibit J to reply). On the same occasion, Purpura stated that "[b]ased upon past experience, Utica First will disclaim and then so will we" (exhibit K). Likewise in this action, the "Notes Report" from QBC's claim's file shows that Sirius's claims adjuster Cheryl Rabb, who consulted with Purpura regarding QBC's tender, stated in her notes dated February 15, 2007, that "Vanlo is insured by Utica First, which is a company that issues policies that either do not give contractual coverage or cover injuries to employees. Therefore we have an expectation that a denial of our tender will be received" (Scott Pakes [senior claim representative at UTC] Affidavit, exhibit D).

And in any event, QBC timely provided Sirius with notice of the underlying action within 15 days of the date on which it learned of the Orozco incident and scheduled the requested meeting with the investigator five days thereafter.

Finally, no discovery is necessary since QBC's evidence establishes that Sirius's disclaimer was untimely as a matter of law, and Sirius failed to identify any facts in support of its position on this issue.

Discussion

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]; Thomas v [*5]Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [1st Dept 2002]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR § 3212[b]). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra; Prudential Securities Inc. v Rovello, 262 AD2d 172[1st Dept 1999]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR §3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman v City of New York, supra, 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]).

As a preliminary matter, the court holds that QBC may rely on the evidence it submitted in support of its motion. The affirmation of QBC's attorney is based upon documentary evidence in the record (Zuckerman, supra; Prudential Securities Inc. v Rovello, 262 AD2d 172, supra), and the unsigned statement of QBC's president Galindo bears the attestation and notarized signature of the person (Sirius's investigator) who obtained the statement from Galindo. Such evidence is admissible to show notice of what information was in Sirius's possession at the relevant time (Stern v Waldbaum, Inc., 234 AD2d 534, 535 [2d Dept 1996][out-of-court statements by unknown declarants are admissible to establish notice of a dangerous condition, even where the accuracy of the statements is not established], citing Provenzo v Sam, 23 NY2d 256, 296 NYS2d 322 [1968]; see also Giardino v Beranbaum, 720 NYS2d 3, 279 AD2d 282 [1st Dept 2001]).

Furthermore, the documents on which QBC relies were prepared or received by Sirius or its agents in the course of its investigation of QBC's [and 24 Fifth Owners'] claim, and thus, can be authenticated as business records by Sirius's own employees with personal knowledge of the relevant records (see Vermont Commissioner of Banking and Insurance v Welbilt Corp., 133 AD2d 396 [2d Dept 1987]) and therefore, are admissible in support of summary judgment.[FN3]

Turning to the merits of the motion, the court concludes that Sirius's disclaimer of coverage to QBC is ineffective as a matter of law.

New York Insurance Law §3420 (d) provides as follows:

"If under a liability policy delivered or issued for delivery in this state, an insurer shalldisclaim liability or deny coverage for death or bodily injury arising out of [an] accident occurring within this state, it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and injured person or any other claimant."

(NY Insurance Law §3420 [d])(emphasis added).

New York courts, applying this statute, hold that an insurer's failure to provide notice of [*6]disclaimer as soon as is reasonably possible after it first learns of the accident or of grounds for disclaimer of liability or denial of coverage, precludes the insurer from disclaiming coverage, even where the insured's own notice of the incident or claim is untimely (see Hunter Roberts Const. Group, LLC v Arch Ins. Co., 75 AD3d 404, 904 NYS2d 52 [1st Dept 2010]; Matter of New York Cent. Mut. Fire Ins. Co. v Aguirre, 7 NY3d 772, 774, 854 NE2d 146, 148 [2006]; First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 67 [2003]).

An insurer who delays in giving a written notice of disclaimer, bears the burden of justifying the delay (Hunter Roberts Const. Group, LLC v Arch Ins. Co., 75 AD3d 404, 904 NYS2d 52 [1st Dept 2010]; First Financial Insurance Co., v Jetco Contracting Corp., 1 NY3d 64, 769 NYS2d 459 [2003]). The determination of whether the disclaimer was issued "as soon as [was] reasonably possible" is made with reference to the time when the insurer first acquired knowledge of the ground(s) upon which it disclaimed (George Campbell Painting v National Union Fire Ins. Co. of Pittsburgh, PA, 937 NYS2d 164, 172 [1st Dept, January 17, 2012]; First Financial Insurance Co., v Jetco Contracting Corp., 1 NY3d 64 [2003][once the insurer has sufficient knowledge of facts entitling it to disclaim, or knows that it will disclaim coverage, it must notify the policyholder in writing as soon as is reasonably possible]; Matter of Allcity Insurance Co. v Jimenez, 76 NY2d 1054 [1991]).

Although the timeliness of such a disclaimer generally presents a question of fact (see Continental Cas. Co. v Stradford, 11 NY3d 443, 449, 871 NYS2d 607 [2008]), where the basis for the disclaimer was, or should have been, readily apparent before the onset of the delay, any explanation by the insurer for its delay will be insufficient as a matter of law (see Aguirre, 7 NY3d 772, citing Jetco, 1 NY3d 64). Conversely, where the basis was not readily apparent, an unsatisfactory explanation will render the delay unreasonable as a matter of law (see Hunter Roberts Const. Group, LLC v Arch Ins. Co., at 409, citing Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co., 27 AD3d 84, 88, 806 NYS2d 53 [1st Dept 2005]; First Fin. Ins. Co., 1 NY3d 64). "If the delay allegedly results from a need to investigate the facts underlying the proposed disclaimer, the insurer must demonstrate the necessity of conducting a thorough and diligent investigation (Hunter Roberts Const. Group, LLC v Arch Ins. Co., at 409, citing Quincy Mut. Fire Ins. Co. v Uribe, 45 AD3d 661 [2007]; Schulman v Indian Harbor Ins. Co., 40 AD3d 957 [2007]).

Furthermore, according to the First Department's most recent pronouncement in George Campbell Painting v National Union Fire Ins. Co. of Pittsburgh, PA (937 NYS2d 164, 167 [1st Dept Jan 17, 2012]),[FN4] Insurance Law §3420 (d) "precludes an insurer from delaying issuance of a disclaimer on a ground that the insurer knows to be valid - [as] here, late notice of the claim - while investigating other possible grounds for disclaiming." Thus, the Court in Campbell expressly overruled its earlier decision in DiGuglielmo v Traveler's Prop. Cas. (6 AD3d 344 [1st Dept 2004], lv denied 3 NY3d 608 [2004]), wherein the Court stated that "[a]n insurer is not [*7]required to disclaim on timeliness grounds before conducting a prompt, reasonable investigation into other possible grounds for disclaimer." In overruling DiGuglielmo, the Court stated that

"our determination of this appeal is dictated by fidelity to the plain language chosen bythe Legislature, the teachings of our state's highest court, and the policy considerations embodied in the law."

(George Campbell Painting, at 167).

The Court further stated that "[the statute's] plain language cannot be reconciled with allowing the insurer to delay disclaiming on a ground fully known to it until it has completed its investigation (however diligently conducted) into different, independent grounds for rejecting the claim. If the insurer knows of one ground for disclaiming liability, the issuance of a disclaimer on that ground without further delay is not placed beyond the scope of the "reasonably possible" by the insurer's ongoing investigation of the possibility that the insured may have breached other policy provisions, that the claim may fall within a policy exclusion, or [ . . . ] that the person making the claim is not covered at all. Stated otherwise, the statute mandates that the disclaimer be issued, not "as soon as is reasonable," but "as soon as is reasonably possible."

(Id., at 171)(first emphasis added).

Thus, guided by the principles of Campbell, this court finds that Sirius's disclaimer of coverage to QBC on the grounds of late notice and the policy exclusion endorsement is ineffective as a matter of law.

As a movant, QBC established its prima facie entitlement to summary judgment by presenting evidentiary proof that Sirius was first aware, as early as January 8, 2007, that QBC's claim may have been untimely when Sirius learned of the accident from GNY's tender, on behalf of 24 Fifth Owners as an additional insured under the Sirius/QBC policy. The letter informed Sirius of the date of Orozco's accident, suit and the name of QBC's subcontractor [Vanlo] as the injured plaintiff's employer (see exhibit C to motion). At the latest, such a reason for disclaimer should have been apparent to Sirius upon examination of the report, dated January 31, 2007, received from its investigator at United and containing the statement of QBC's president Galinda that he first learned of the accident when QBC was served with Orozco's complaint. Thus, for present purposes, the court determines that no later than on January 31, 2007, the clock began to run on Sirius's obligation to give written notice of disclaimer to QBC, and, at minimum, Sirius waited 49 days before disclaiming coverage to QBC on March 21, 2007.

While, as noted by the Court of Appeals in Jetco, supra, there is no fixed yardstick, against which to measure an insurer's delay,[FN5] several courts have found periods of less than 49 [*8]days unreasonable as a matter of law (see e.g. First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, supra [48 days]; 2833 Third Avenue Realty Associates v Marcus, 12 AD3d 329 [1st Dept 2004][37-days]; West 16th St. Tenants Corp. v Public Serv Mut. Ins. Co., 290 AD2d 278, 279, 736 NYS2d 34 [1st Dept 2002][30 days]; Squires v Robert Marini Bldrs., 293 AD2d 808, 810, 739 NYS2d 777 [3d Dept 2002][42 days]).

In the instant case, since the basis for the disclaimer [late notice] "was, or should have been, readily apparent [to Sirius] before the onset of the delay," Sirius's explanation of the delay is insufficient as a matter of law (Campbell, citing Jetco, 1 NY3d 64; Aguirre, 7 NY3d 772).

Notably, Sirius's contention that its delay was partially attributable to QBC's failure to schedule a meeting with the United's claim investigator "prior to January 30, 2007" (see Christopher M. Otton, Esq. Affirmation in opposition, ¶33), is controverted by the evidence that QBC provided Sirius with notice of the underlying action within approximately 15 days of the date on which it learned of the subject incident and scheduled the requested meeting with the investigator five days thereafter.

Furthermore, the record shows that Sirius, without any further investigation into the issue of late notice, withheld its well-anticipated disclaimer on that ground, while purportedly investigating the identity of QBC's subcontractor and its carrier, in order to determine the applicability of the subject policy exclusion. However, the First Department in Campbell explicitly prohibited such practice by an insurer, who, like Sirius here, delayed the issuance of a disclaimer on a known ground [untimely notice] while investigating other possible grounds for avoiding liability [e.g., policy exclusion]" (Campbell, at 174).

Moreover, the documentary evidence establishes that Sirius had sufficient information to support its disclaimer on the exclusion endorsement ground no later than on February 7, 2007, when it received the report from United. Most important, Sirius's business records demonstrate that, on February 15, 2007, Sirius knew or expected that Utica First would deny coverage to QBC, including, based on the employee and contractual liability exclusions, - the requirements which would then trigger the exclusion endorsement in Sirius/QBC policy. Notably, on that date, Sirius's claims adjuster Cheryl Rabb made the following entry in the "Notes Report" in connection with QBC's claim: "Vanlo is insured by Utica 1st; which is a company that issues policies that either don't give contractual covg [sic.] or cover injuries to employees. Therefore we have an expectation that a denial of our tender will be received."

(Pakes Affidavit, exhibit D to opposition)(emphasis added).Having such knowledge on February 15, 2007, Sirius, nonetheless, inexplicably delayed issuing its disclaimer for another 34 days. Accordingly, QBC established, prima facie, that under the circumstances, Sirius failed to provide a written disclaimer of coverage as soon as reasonably possible (see Campbell Painting v National Union Fire Ins. Co. of Pittsburgh, PA, 937 NYS2d 164, supra). In response, Sirius failed to raise a triable issue of fact requiring denial of QBC's summary judgment (see First Financial Insurance Co., v Jetco Contracting Corp., 1 NY3d at 69).

Finally, Sirius does not defeat QBC's summary judgment on the ground that it is premature because discovery is incomplete. CPLR §3212 (f) permits a party opposing summary judgment to obtain further discovery when it appears that facts supporting the position of that party exist but cannot be stated (Global Mins v Holme, 35 AD3d 93, 824 NYS2d 210 [1st Dept [*9]2006]). However, the mere hope that further discovery would yield evidence of a triable issue of fact is not a basis for denying summary judgment (Prestige Decorating and Wallcovering, Inc. v U.S. Fire Ins. Co., 49 AD3d 406, 407 [1st Dept 2008]).

Here, Sirius failed to identify any facts or further discovery essential to further oppose the motion. Indeed, its unspecified claims of missing responses to the notice for discovery and inspection, and of not identified "witness to testify at an examination before trial" cannot serve as a basis for denial of summary judgment.

Accordingly, QBC's motion is granted.

Conclusion

Based on the foregoing, it is hereby

ORDERED and ADJUDGED that the motion of plaintiff Quality Building Contractors, Inc. for summary judgment (CPLR 3212) in its favor against defendant Delos Insurance Company f/k/a Sirius America Insurance Company, declaring that defendant Delos Insurance Company f/k/a Sirius America Insurance Company is obligated to defend and indemnify QBC for all claims asserted in the underlying personal injury lawsuit (Enri Orozco v 24 Fifth Owners, Inc., et al., New York Supreme Court, Queens County, Index No.: 24996/2006), is granted and the claims against Delos Insurance Company f/k/a Sirius America Insurance Company are hereby severed; and it is further

ORDERED that the Clerk shall enter judgment accordingly; and it is further

ORDERED that the defendant shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the Court.

Dated: March 8, 2012______________________________

Hon. Carol Robinson Edmead, J.S.C.

In accordance with the accompanying Memorandum Decision, it is hereby

ORDERED and ADJUDGED that the motion of plaintiff Quality Building Contractors, Inc. for summary judgment (CPLR 3212) in its favor against defendant Delos Insurance Company f/k/a Sirius America Insurance Company, declaring that defendant Delos Insurance Company f/k/a Sirius America Insurance Company is obligated to defend and indemnify QBC for all claims asserted in the underlying personal injury lawsuit (Enri Orozco v 24 Fifth Owners, Inc., et al., New York Supreme Court, Queens County, Index No.: 24996/2006), is granted and the claims against Delos Insurance Company f/k/a Sirius America Insurance Company are hereby severed; and it is further

ORDERED that the Clerk shall enter judgment accordingly; and it is further

ORDERED that the defendant shall serve a copy of this order with notice of entry upon all parties within 20 days of entry. [*10]

This constitutes the decision and order of the Court. Footnotes

Footnote 1: According to parties' submissions, the underlying personal injury action is entitled Enri Orozco v 24 Fifth Owners, Inc., et al. (New York Supreme Court, Queens County, Index No.: 24996/2006).

Footnote 2:The exclusion endorsement in Sirius/QBC policy provides that the policy does not apply

"when there is no prior written and signed contract entered into between the Named Insured and the [ . . . ] subcontractor [ . . . ] requiring the [ . . . ] subcontractor [ . . . ] to indemnify and hold harmless the Named Insured; or

when the Named Insured's [ . . . ] subcontractor [ . . . ] fails to have in force commercial general liabilityinsurance including contractual liability coverage for the benefit of the [ . . . ] subcontractor, as well as the Named Insured for indemnification and/or contribution claims [ . . . ], including [ . . . ] any claim [ . . . ]arising out of any loss suffered by an employee of the [ . . . ] subcontractor."

(exhibit C) (emphasis added).

Footnote 3: It is noted that although Sirius argues that the documents are unauthenticated, Sirius does not affirmatively state or allege that such documents are not authentic.

Footnote 4: The court notes, that, Sirius's reliance on DiGuglielmo v Traveler's Prop. Cas. (6 AD3d 344 [1st Dept 2004], lv denied 3 NY3d 608 [2004]) is unavailing, as it was explicitly overruled by the First Department in George Campbell Painting v National Union Fire Ins. Co. of Pittsburgh, PA (937 NYS2d 164, 167 [1st Dept Jan 17, 2012]), and marked a shift in the law of this department. The court records indicate that Sirius filed its opposition on or about January 25, 2012, several days after the Campbell was issued.

Footnote 5: The court in Campbell, relying on the Court of Appeals' precedent in connection with §3420 (d), explained that the policy behind the statute is "to assist a consumer or claimant in obtaining an expeditious resolution to liability claims by requiring insurance companies to give prompt notification when a claim is being denied" (Campbell, citing Jetco, 1 NY3d at 68, citing 30—Day Budget Report on Bills, Bill Jacket, L. 1975, ch. 775).