Tower Insurance Company of New York, Plaintiff-Appellant, v. R & R Dental Modeling Inc., Defendant-Respondent, Macion Chery, et al., Defendants. (2011)

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Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 9, 2010, which, to the extent appealed from, denied plaintiff's motion for summary judgment seeking a declaration that it had no duty to defend and indemnify defendant R & R Dental Modeling Inc. in the underlying personal injury action, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiff has no such duty.

Defendant's principal heard the plaintiff in the underlying personal injury action stumble on the steps, heard her complain of pain, and saw her walking with a limp.   A week later, defendant's principal saw that the injured woman's leg was in a new cast.   Nevertheless, defendant failed to notify plaintiff of the possibility of a claim until 17 months later, after it had been served with the summons and complaint in the personal injury action.   Defendant's failure, despite the observations of its principal, to make any inquiry into the incident belies its claim to a good faith belief that the injured person would not seek to hold it liable for her injuries and renders its delay in notifying plaintiff inexcusable (see e.g. Tower Ins. Co. of N.Y. v Miles, 74 AD3d 410 [2010];  Tower Ins. Co. of N.Y. v. Red Rose Rest., Inc., 77 AD3d 453 [2010] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK