AMERICAN PIPE TANK LINING CO INC v. Insurance Office of America, Inc., Defendant Appellant, (2024)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about March 22, 2023, which granted defendant Scottsdale Insurance Company's motion for summary judgment declaring that it owed no duty to satisfy a judgment against plaintiff American Pipe & Tank Lining Co., Inc., and dismissing the complaint and cross-claims against it with prejudice, unanimously affirmed, without costs.

Defendant Insurance Office of America, Inc. (IOA) seeks reversal of the court's order granting codefendant Scottsdale's motion for summary judgment dismissing the complaint and cross-claims against Scottsdale with prejudice.  The court properly granted Scottsdale's motion for summary judgment declaring that it owed no duty to satisfy a judgment against insured plaintiff.  Scottsdale's policy required a notice of a claim to be given “as soon as practicable.”  Contrary to IOA's contention, its email chain regarding the judgment and an affidavit of a Scottsdale field consultant, who reviewed the company's business records, established, prima facie, that Scottsdale did not receive notice of the claim until after a verdict had already been rendered in the underlying action.  There being no excuse for the delay, “an irrebuttable presumption of prejudice” applies (Insurance Law § 3420[c][2][B];  see Travelers Ins. Co. v. Volmar Constr. Co., 300 A.D.2d 40, 42, 752 N.Y.S.2d 286 [1st Dept. 2002]).  Nothing in the record raises a question of fact in opposition.  IOA's argument that more discovery is needed as another party could have notified Scottsdale of the potential claim is speculative and thus should be rejected (see Flores v. City of New York, 66 A.D.3d 599, 600, 888 N.Y.S.2d 27 [1st Dept. 2009]).