Public Serv. Mut. Ins. Co. v Tower Ins. Co. of N.Y.

Public Serv. Mut. Ins. Co. v Tower Ins. Co. of N.Y. 2013 NY Slip Op 07555 Decided on November 14, 2013 Appellate Division, First 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 November 14, 2013
Gonzalez, P.J., Friedman, Sweeny, Moskowitz, Clark, JJ.
11058 305267/10

[*1]Public Service Mutual Insurance Company, et al., Plaintiffs-Respondents,

v

Tower Insurance Company of New York, Defendant-Appellant, Ahmed Alhajaji, etc., et al., Defendants.




Law Office of Steven G. Fauth, LLC, New York (Suma S.
Thomas of counsel), for appellant.
Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn
of counsel), for respondents.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 12, 2012, which, to the extent appealed from as limited by the briefs, upon reargument of defendant Tower Insurance Company's motion for summary judgment declaring that it had no duty to defend and indemnify plaintiff 100-120 Hugh Grant Circle Realty, LLC (HGC) in the underlying personal injury action, adhered to the original determination denying the motion, unanimously affirmed, with costs.

Tower's obligation, if any, to reimburse plaintiff Public Service Mutual Insurance Company for fees incurred in defending HGC in the underlying action is not affected by the timeliness of its disclaimer of coverage, since Insurance Law § 3420(d) does not apply to requests for defense and indemnification between insurers (see Bovis Lend Lease Lmb., Inc. v Royal Surplus Lines Inc. Co., 27 AD3d 84, 92-93 [1st Dept 2005]). However, the record does not demonstrate conclusively that Tower received late notice of the claim and may disclaim coverage on that ground. In an affidavit by its senior liability examiner, Public Service explained that so much confusion was created by the conflicting pleadings, bill of particulars, and deposition testimony in the underlying action that it required six weeks of investigation to determine the facts of the accident and HGC's liability. An issue of fact exists whether Public [*2]Service's 48-day delay before issuing its demand to Tower was reasonable under the circumstances (see Hartford Acc. & Indem. Co. v CNA Ins. Cos., 99 AD2d 310, 313 [1st Dept 1984]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 14, 2013

CLERK