2833 Third Avenue Realty Associates v Jack Marcus

2833 Third Ave. Realty Assoc. v Marcus 2004 NY Slip Op 08816 [12 AD3d 329] November 30, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

2833 Third Avenue Realty Associates et al., Respondents,
v
Jack Marcus et al., Appellants.

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Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered on or about December 18, 2003, which, to the extent appealed from, denied defendants' motion for summary judgment and declared that defendant Public Service Mutual Insurance Company shall defend and indemnify plaintiff 2833 Third Avenue Realty Associates in the underlying personal injury action, unanimously affirmed, with costs.

Although plaintiff insureds failed to provide timely notice of claim and forward the summons and complaint as required by the policy, defendants' disclaimer after 37 days was unreasonable as a matter of law since the grounds for the disclaimer were evident from the face of the late notice of claim (see West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278 [2002]). Concur—Nardelli, J.P., Mazzarelli, Saxe, Friedman and Catterson, JJ.