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Tower Ins. Co. of N.Y. v 572 Antillana Inc. 2002 NY Slip Op 30129(U) June 27, 2002 Sup Ct, NY County Docket Number: 104124/00 Judge: Edward H. Lehner 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.

[* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT:

EDWARD H. FEHNER
Justice

PART

101

MOTION DATE

- vMOTION SEQ. NO. MOTION CAL. NO.

A

The following papers, numbered 1 to

were read o n this motion to/for

Notice of Motion/ Order to S h o w Cause - Affidavits - Exhibits
Answering Affidavits Replying Affidavits

...

I I
I

PAPERS NUMBERED

- Exhibits

. .I

__ -

-_--

:J

-

1?

I

Crcss-Motion:

E Yes

E No

Upon the foregoing papers. it is ordered that this motion

with a ic o rnp a ny ing rn ern o r a nd u m de c i sio n

Check one:

FINAL DISPOSITION

@ NON-FINAL DISPOSITION



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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 19 .................................................................. X TOWER INSURANCE COMPANY OF NEW Y O N ,
Plaintiff,

INDEX NO. 104124/00

- against 572 ANTILLANA INC., JAVIER CHECO, YEHEZKEL & DISH, DISH, DISHMEL REALTY COW. and JOSE COLON

On June 15, 1998, Jose Colon was injured in the store occupied by 572 Antillana Inc. ("Antillana"). Antillana and its president, Javier Checo, are insured under a commercial liability insurance policy issued by plaintiff Tower Insurance Company of New York ("Tower"). Under that policy, Antillana is required to notify Tower of any occurrence which may result in a claim against Antillana as soon as is practicable. The notice must include how, when and where the accident occurred, including any injuries which resulted. Three days after the incident, Checo claims he called Antillana's insurance broker, Mary Moya, and notified her of the accident. Ms. Moya stated that she has no recollection of receiving the call. On August 11, 1999, fourteen months after the incident, Antillana's attorney faxed to Ms. Moya a letter from Jose Colon's attorney

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stating that he had been retained by Mr. Colon "in connection with personal injuries sustained at [Antillana's] facility on June 15, 1998." While in an unsworn statement dated January 19,2000, Ms. Moya claims she recalls receiving a letter of representation "dated 9/99" and that she "referred" the letter to Tower, in an affidavit sworn to on February 4,2002, she stated she was not able to specifically recall the letter, but claimed it was her "habit, custom and business practice to promptly send letters" of representation to the Morstan Agency. During oral argument, Tower acknowledged that Morstan is its agent. On September 8, 1999, Jose Colon filed a personal injury suit captioned "Jose Colon v. 572 Antillana. Inc., Javier Checo and Dishmel Realty Corp." in this court (Index No. 118006/99). Tower states that on November 19, 1999 it received copies of the summons and the complaint in the Colon action, but the complaint fails to state details of the incident other than to allege that the plaintiff "was caused to fall from an elevated height thereby causing him to sustain certain severe personal injuries". After Tower received notice on November 19, 1999, it commenced an investigation of the incident. The only known component of the investigation was an interview of Mr. Checo which occurred on December 29, 1999. He and his lawyer claim they cooperated with Tower's investigation. However, Tower claims that Checo was unavailable and that there were multiple attempts to contact him, but it
2

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fails to provide any details with respect thereto. Through their interview with Checo, Tower discovered that he had knowledge of the accident at the time it occurred and that grounds for disclaiming coverage due to untimely notice existed. Tower disclaimed coverage in a letter dated January 5, 2000, one week after the interview and 47 days after receiving copies of the summons and complaint. On March 3,2000, Tower filed this declaratory judgment action claiming that Antillana and Checo had failed to satisfy a condition precedent to coverage in that they failed to promptly notifjr Tower of the incident, and that hence it is not required to defend or indemnifL Antillana or Checo in regard to any claim arising from the personal injury action. Furthermore, Tower requested Antillana and Checo be adjudged liable to Tower for any sums expended in their defense. Before the court is a motion by Tower for summary judgment. A central issue
on this motion is whether Tower disclaimed coverage in a timely manner.

Antillana's first attempt at notifying Tower was not sufficient notice to the insurer because notice to Antillana's broker i s not notice to the insurer. [2540 Assocs. Inc. v. Assicurazioni Generali, 271 A.D.2d 282,284 (1st Dept. 2000)l. Since there is no proof in admissible form that notice was sent to Tower in August 1999, the only proof of notice is Tower`s receipt of the Colon summons and complaint on November
3

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19, 1999. This delay of 17 months is clearly not timely notice of the accident [Power Auth. 0fN.Y. v. Westinghouse Elec. Corp., 117 A.D.2d 336,342 (1st Dept. 1986) (53 day delay in notifLing insurer of occurrence untimely); Goodwin Bowler Assocs., Ltd. v. E. Mut. Ins. Co., 259 A.D.2d 381,381 (1st Dept. 1999) (two month delay in submitting notice of claim untimely)]. Failure to give timely notice of the accident "vitiates" the coverage [Allcitv Ins. Co. v. Jimenez, 78 N.Y.2d 1054, 1055 (1991); Brandon v. Nationwide Mut. Ins. Co., 284 A.D.2d 886, 887 (3rd Dept. 2001), aff d, 97 N.Y.2d 491 (2002)l. However, if Tower failed to give timely notice of disclaimer as required by Insurance Law

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