ROSE v. Maryland Casualty Company, third-party defendant-appellant. (1999)

In a claim to recover damages for personal injuries and wrongful death, etc., the third-party defendant, Maryland Casualty Company, appeals from an order of the Court of Claims (Silverman, J.), dated April 22, 1998, which denied its motion for summary judgment dismissing the third-party claim seeking a judgment declaring that it is obligated to defend and indemnify the defendant third-party claimant State of New York, and granted the cross motion of the State of New York for summary judgment on the third-party claim.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Court of Claims for entry of an appropriate judgment severing the third-party claim and declaring that the appellant is obligated to defend and indemnify the State of New York in the underlying claim.

The Court of Claims correctly determined that the third-party defendant, Maryland Casualty Company (hereinafter the appellant), is obligated to defend and indemnify the defendant third-party claimant, State of New York, in the underlying claim.   Although the appellant disclaimed coverage on the ground that the State had not provided it with timely notice of the occurrence, the appellant had received timely notice of the occurrence from nonparty Hendrickson Bros., Inc./Newborn Construction, Inc. (hereinafter Hendrickson), which had been required to procure and maintain, inter alia, bodily injury and property damage liability insurance for the State.   Under the facts of this case, the State was similarly situated to Hendrickson, and therefore, the notice provided by Hendrickson is deemed applicable to the State (see, National Union Fire Ins. Co. of Pittsburgh v. Insurance Co. of N. Am., 188 A.D.2d 259, 261, 590 N.Y.S.2d 463;  Rosen v. City of New York, 245 A.D.2d 202, 666 N.Y.S.2d 594;  Motor Vehicle Acc. Ind. Corp. v. United States Liab. Ins. Co., 33 A.D.2d 902, 307 N.Y.S.2d 685).   The matter is remitted to the Court of Claims for the entry of an appropriate judgment in the third-party claim (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).

MEMORANDUM BY THE COURT.