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State of New York v Titan Roofing, Inc. 2009 NY Slip Op 31284(U) June 16, 2009 Supreme Court, Albany County Docket Number: 697-09 Judge: Joseph C. Teresi 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.

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STATE OF NEW YORK SUPREME COURT THE STATE OF NEW YORK, Plaintiff, -againstTITAN ROOFING, INC. and CONTINENTAL CASUALTY COMPANY,

COUNTY OF ALBANY

DECISION and ORDER INDEX NO. 697-09 RJI NO. 01-09 ..096070

Defendants. Supreme Court Albany County All Purpose Term, June 4, 2009 Assigned to Justice Joseph C. Teresi

APPEARANCES: Andrew M. Cuomo, Esq. Attorney General of the State of New York Attn: Joan Matalavage, Esq. Attorneys for Plaintiff The Capitol Albany, New York 12224 Wilson, Elser, Moskowitz, Edelman & Dicker LLP Douglas Novotny, Esq. Attorneys for Defendant Titan Roofing, Inc. 677 Broadway 9th Floor Albany, NY 12207 Colliau Elenius Murphy Carluccio Keener & Morrow Marian S. Hertz, Esq. Attorneys for Defendant Continental Casualty Company 40 Wall Street 7th Floor New York, New York 10005 TERESI, J.: On September 22, 2005, Carlton Zelno (hereinafter "Zelno") was working on a construction project rehabilitating The State Capitol building's roof. Zelno was on the project's

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scaffolding and above him a stone, weighing up to 3,600 pounds, was being set on the roof. When the stone slid out of position toward the scaffolding, Zelno was trampled by his fleeing coworkers and injured. The stone ultimately came to rest in the building's gutter before reaching the scaffolding. The State of New York (hereinafter "Plaintiff') commenced this declaratory judgment action seeking defense and indemnification in the action Zelno brought against it, based on the above occurrence. Plaintiff's action against Titan Roofing, Inc. (hereinafter "Titan") claims common law and contractual indemnification pursuant to its contract with Titan, as its general contractor for the roof rehabilitation project. Plaintiff's claim against Continental Casualty Company (hereinafter "Continental") is based upon a policy of insurance, insuring Plaintiff against any claims arising from the roof rehabilitation project. Issue has been joined by both defendants and discovery is not complete. Continental now moves for summary judgement, claiming that Plaintiff failed to notify it of Zelno's claim in a timely manner, thereby violating and voiding the policy. Plaintiff opposes the motion, and also moves for summary judgment on its claim against Titan. Plaintiff claims entitlement to judgment against Titan pursuant to the indemnity provision of its contract with Titan and common law indemnification principals. Titan opposes both motions. Because both Continental and Plaintiff demonstrated their entitlement to judgment as a matter of law, both of their motions are granted. "Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue." (tlapierski v. Finn, 229 AD2d 869, 870 [3d Dept. 1996]). On a motion on for summary judgment, the movant must establish by admissible proof,

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their right to judgment as a mater oflaw. (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Gilbert Frank Corp. v. Federal Insurance Co., 70 NY2d 966 [1988]). If the movant establishes their right to judgment as a matter oflaw, the burden then shifts to the opponent of the motion to establish by admissible proof, the existence of genuine issues of fact. (Zuckerman v. City of New York, 49 NY2d 557 [1980]). On this record, Continental is entitled to summary judgment because it demonstrated that Plaintiff did not notify it of Zelno' s claim within a reasonable period of time, as a matter of law. "Where a policy of liability insurance requires that notice of an occurrence be given 'as soon as practicable,' such notice must be accorded the carrier within a reasonable period of time." (Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). Here, the policy of insurance requires Plaintiff to notify Continental "as soon as practicable of an 'occurrence' which may result in a claim"; and also requires notification "[i]f a claim is made or a suit is brought. .. as soon as practicable." Zelno was injured on September 22,

2005. Contemporaneously made documents, introduced by Continental and undisputed by Plaintiff, demonstrate Plaintiff's awareness of the Zelno occurrence on the day it happened. Then, in August 2006, Plaintiff defended itself against a motion made by Zelno in the Court of Claims, seeking leave to file and serve a late notice of claim. Zelno's motion was granted in part, and he commenced his Court of Claims action against Plaintiff on or about January 19, 2007. Despite the passage of one year and seven months from the date of the occurrence, nine months from Plaintiff being served with Ze1no' s motion and proposed claim, and four months from Plaintiff being served with Zelno' s claim, Plaintiff notified Continental of Ze1no' s claim by letter dated May 21, 2007 (hereinafter "notice letter"). The extent of this delay is unreasonable as a

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matter oflaw.

(Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005] reversing

Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 13 AD3d 227 [1 st Dept. 2004][four month delay was unreasonable]). Moreover, Plaintiff offers no excuse for their delay or introduces any evidence to establish an issue of fact, all but conceding that its notice was untimely. (Preferred Mutual Insurance Co. v. New York Fire-Shield, Inc., _ AD3d_, 2009 WL 1544657,2 [3d Dept. 2009];

Klersy Building Corp. v. Harleysville Worcester Insurance Co., 36 AD3d 1117 [3d Dept. 2007]). Instead, Plaintiff and Titan claim that Continental's disclaimer of coverage was untimely. "Insurance Law

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