Wausau Bus. Ins. Co. v 3280 Broadway Realty Co. LLC

Wausau Bus. Ins. Co. v 3280 Broadway Realty Co. LLC 2008 NY Slip Op 00572 [47 AD3d 549] January 29, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

Wausau Business Insurance Company, Appellant,
v
3280 Broadway Realty Company LLC et al., Respondents, et al., Defendant.

—[*1] Jaffe & Asher, LLP, New York City (Marshall T. Potashner of counsel), for appellant.

Johnson & Liebman, LLP, New York City (Charles D. Liebman of counsel), for respondents.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered December 27, 2006, which denied plaintiff's motion for summary judgment dismissing the counterclaims of defendants 3280 Broadway Realty Company LLC (3280 Broadway) and Jarvis Doctorow, unanimously reversed, on the law, with costs, the motion granted and the counterclaims dismissed. The Clerk is directed to enter judgment accordingly.

The denial of plaintiff's motion on the ground that it failed to support its motion with evidence in admissible form was improper, where the affidavit of plaintiff's claims handler was based upon documentary evidence and sufficiently complied with the requirement that a motion for summary judgment be supported by an affidavit from a person having personal knowledge (see CPLR 3212 [b]; First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584 [1992]).

The court also improperly determined that plaintiff's disclaimer of coverage was untimely as a matter of law. Because the grounds for which plaintiff denied coverage were not readily apparent to it until June 5, 2006 (see Matter of Allcity Ins. Co. [Jimenez], 78 NY2d 1054, 1056 [1991]), when it discovered a letter indicating that Doctorow, 3280 Broadway's property manager, knew of the underlying accident in 2003, but failed to disclose such knowledge until more than two years later, and plaintiff disclaimed coverage 24 days later after consulting with both in-house and outside counsel, it demonstrated that its disclaimer was timely (see Insurance Law § 3420 [d]; see also Sirius Am. Ins. Co. v TGC Constr. Corp., 37 AD3d 818, 819 [2007]). The record evidence also establishes that Doctorow misrepresented when he had first learned of the accident, and that plaintiff reasonably relied on this misrepresentation when it initially agreed to defend and indemnify 3280 Broadway in the underlying action (id.). Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and Acosta, JJ.