TOWER INSURANCE OF NEW YORK v. Marcelino Marin, Defendant. (2011)

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered December 18, 2009, which, in a declaratory judgment action, granted plaintiff Tower Insurance of New York's motion for summary judgment and declared that plaintiff had no duty to indemnify and defend appellants in an underlying personal injury action, unanimously affirmed, without costs.

 Where an insurance policy mandates that notice of an occurrence be given to the insurer “as soon as practicable,” the insured's failure to do so vitiates the insurance contract (see Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 N.Y.3d 742, 743, 800 N.Y.S.2d 521, 833 N.E.2d 1196 [2005];  Argo Corp. v. Greater N.Y. Mut. Ins. Co., 4 N.Y.3d 332, 339, 794 N.Y.S.2d 704, 827 N.E.2d 762 [2005] ).

 The insureds' building superintendent's knowledge of the accident and injuries is imputable to the appellant building owners (see Anglero v. George Units, LLC, 61 A.D.3d 564, 565, 877 N.Y.S.2d 296 [2009] ).   Appellants' reference to the subject building manager's statement in his affidavit that Ana Hernandez was not the building's superintendent is insufficient to raise a triable issue of fact, as it is directly contradicted by the manager's earlier statement at his deposition that Hernandez was, in fact, the superintendent (see Roimesher v. Colgate Scaffolding & Equip. Corp., 77 A.D.3d 425, 426, 908 N.Y.S.2d 649 [2010];  Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 320, 701 N.Y.S.2d 403 [2000] ).

 Accordingly, Supreme Court correctly found that appellants had knowledge of the occurrence about 76 days before notifying the insurer.   As such, the notice was untimely as a matter of law (see Juvenex Ltd. v. Burlington Ins. Co., 63 A.D.3d 554, 882 N.Y.S.2d 47[2009] [two month delay untimely];  Young Israel Co–Op City v. Guideone Mut. Ins. Co., 52 A.D.3d 245, 859 N.Y.S.2d 171 [2008] [40 day delay untimely];  Pandora Indus. v. St. Paul Surplus Lines Ins. Co., 188 A.D.2d 277, 590 N.Y.S.2d 471 [1992] [31 day delay untimely] ).

 Failure to give timely notice may be excused if the insured has a good faith belief of non-liability, but only if such belief is reasonable (see Great Canal Realty Corp., 5 N.Y.3d at 743–744, 800 N.Y.S.2d 521, 833 N.E.2d 1196).   In the case at bar, even assuming the appellants' property manager believed that the injured party would not assert a claim against the building owner, such belief was not reasonable.   First, notwithstanding the fact that the property manager may have understood, based on his conversation with the building's superintendent, that Marin's injury was not serious, he still had the duty to report the possibility of a claim as soon as practicable (see Republic N.Y. Corp. v. American Home Assur. Co., 125 A.D.2d 247, 248, 509 N.Y.S.2d 339 [1986] ).   Second, it is undisputed that the appellants did not undertake any investigation of the incident, or make inquiry regarding the property manager's alleged belief that the injury was slight.   Thus, the appellants could not have formed a reasonable belief of non-liability (see Great Canal Realty Corp., 5 N.Y.3d at 744, 800 N.Y.S.2d 521, 833 N.E.2d 1196;  Tower Ins. Co. of N.Y. v. Jaison John Realty Corp., 60 A.D.3d 418, 419, 874 N.Y.S.2d 91 [2009] ).   Moreover, where, as here, the building superintendent observed Marin bleeding from the head and being removed from the accident scene by ambulance, it was not reasonable for the appellants to fail to notify plaintiff of the occurrence at that time (see Tower Ins. Co. of N.Y. v. Lin Hsin Long Co., 50 A.D.3d 305, 307–08, 855 N.Y.S.2d 75 [2008];  Anglero, 61 A.D.3d at 565, 877 N.Y.S.2d 296).

 Supreme Court also properly held that one of the appellants, FY 1661 Park LLC d/b/a Townhouse Management Company, which was not named as an insured in relation to the building at which the accident occurred, was not entitled to coverage in any event.   A party not named as an insured or additional insured on the face of the policy is not entitled to coverage (see Sixty Sutton Corp. v. Illinois Union Ins. Co., 34 A.D.3d 386, 388, 825 N.Y.S.2d 46 [2006];  Moleon v. Kreisler Borg Florman Gen. Constr., 304 A.D.2d 337, 339, 758 N.Y.S.2d 621 [2003] ).   That such appellant, an affiliate of the other appellants, was allegedly insured in relation to a different property included in the policy, is irrelevant (see Mary Lou Pendill v. Furry Paws, Inc., 29 A.D.3d 453, 454, 815 N.Y.S.2d 513 [2006] ).

In light of our determination, we do not reach the parties' remaining contentions concerning the policy's exclusion for “Designated Ongoing Operations.”