CINCINNATI INSURANCE COMPANIES v. Thomas Johnson, Inc., Defendant-Respondent. (2008)

 We conclude that the judgment must be modified for the sole reason that Supreme Court erred in determining therein that the failure of defendant Sirius America Insurance Company (Sirius) to send its notice of disclaimer to the plaintiff in the underlying action as well as to three of the plaintiffs in this action, i.e., C.O. Falter Construction Corp. (Falter) and the Buffalo Sewer Authority and the City of Buffalo Water Division (collectively, City), renders the disclaimer invalid under Insurance Law § 3420(d).  Falter and the City have no standing to assert the alleged statutory violation by Sirius with respect to the plaintiff in the underlying action because they did not suffer an injury as a result thereof, and “they are not within the zone of interest which the statutory requirement of notice to the injured part[y] seeks to protect” (Batchie v. Travelers Ins. Co., 130 A.D.2d 536, 537, 515 N.Y.S.2d 271).   With respect to Falter and the City, although they are entitled to notice of disclaimer pursuant to Insurance Law § 3420(d) based upon their status as insureds, the notice of disclaimer was not rendered invalid under Insurance Law § 3420(d) based on the failure of Sirius to send it to them inasmuch as Sirius complied with the statute by sending the notice of disclaimer to plaintiff Cincinnati Insurance Companies, the insurance carrier for Falter and the City (see Excelsior Ins. Co. v. Antretter Contr. Corp., 262 A.D.2d 124, 127-128, 693 N.Y.S.2d 100).   We therefore modify the judgment accordingly, and we otherwise affirm the judgment for reasons stated in the decision at Supreme Court.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the second decretal paragraph and as modified the judgment is affirmed without costs.

MEMORANDUM: