590740 08 v. U.S. Underwriters Insurance Company, Defendant-Appellant-Respondent, Utica First Insurance Company, et al., Defendants.  [And a Third-Party Action] (2011)

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Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 5, 2010, which denied defendant U.S. Underwriters Insurance Company's motion for summary judgment dismissing the complaint as against it and declaring that it has no duty to defend or indemnify plaintiffs (Chelsea Village) in the underlying personal injury action, and denied Chelsea Village's cross motion for summary judgment declaring in its favor, unanimously modified, on the law, to grant defendant's motion to the extent of declaring that it has no duty to defend or indemnify Chelsea Village in the underlying action, and otherwise affirmed, without costs.

Chelsea Village satisfied its notice obligations under the U.S. Underwriters policy by submitting notice of claim on April 30, 2007, via a “series of intermediaries” (see U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 369 F3d 102, 105 [2d Cir2004];  see also U.S. Underwriters Ins. Co. v Falcon Constr.   Corp., 2003 WL 22019429, *5-6, 2002 U.S. Dist LEXIS 15065, *15-16 [SD N.Y.2003] ).

Contrary to Chelsea Village's contention, defendant's May 17, 2007 denial of coverage under the policy was not rendered “invalid” by the fact that its April 30, 2007 letter stated that the policy did not provide coverage to Chelsea Village (see State Ins. Fund v. Utica First Ins. Co., 25 AD3d 388, 388 [2006] ).   In addition to the erroneous statement that Chelsea Village was not an insured under the policy, in the April 30, 2007 letter, defendant asserted several other grounds for denying coverage, including a policy exclusion for bodily injury to any employee of any insured.   In the May 17, 2007 letter, in response to a letter from Chelsea Village's broker, defendant acknowledged that Chelsea Village was an additional insured under the policy, and reiterated the other grounds for the denial of coverage.   Thus, rather than changing its position to rely on a ground not stated in the April 30, 2007 denial, in the May 17, 2007 letter, defendant merely retracted one of the grounds set forth in the April 30, 2007 letter.

We have considered Chelsea Village's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK