ATLANTIC GENERAL CONTRACTING INC v. UNITED STATES LIABILITY INSURANCE GROUP (2005)

In an action, inter alia, for a judgment declaring that the defendants United States Liability Insurance Group and Mount Vernon Fire Insurance Company are obligated to defend and/or indemnify the plaintiffs in an underlying personal injury action entitled Carreon v. A.N.A. Team Corp., et al., pending in the Supreme Court, Queens County, under Index No. 24344/99, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O'Connell, J.), dated July 27, 2004, which granted the motion of the defendants United States Liability Insurance Group and Mount Vernon Fire Insurance Company for summary judgment declaring that they are not so obligated and denied their cross motion for summary judgment in their favor against those defendants.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendants United States Liability Insurance Group and Mount Vernon Fire Insurance Company are not obligated to defend and/or indemnify the plaintiffs in the underlying personal injury action.

 The Supreme Court properly determined that, under the facts of this case, New York law, as opposed to New Jersey law, is applicable since New York has the most significant contacts to the instant dispute (see generally Matter of Eagle Ins. Co. v. Singletary, 279 A.D.2d 56, 58-59, 717 N.Y.S.2d 351;  Matter of Allstate Ins. Co. v. Conigliaro, 248 A.D.2d 293, 670 N.Y.S.2d 469).   New York is the location where the construction work at issue was to be performed, as well as the location of the subject accident and underlying lawsuit.

 The defendants United States Liability Insurance Group and Mount Vernon Fire Insurance Company (hereinafter the insurer defendants) established their prima facie entitlement to summary judgment by demonstrating that they did not receive timely notice of the occurrence and properly disclaimed coverage (see Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76;  C.C.R. Realty of Dutchess v. New York Cent. Mut. Fire Ins. Co., 1 A.D.3d 304, 766 N.Y.S.2d 856;  Serravillo v. Sterling Ins. Co., 261 A.D.2d 384, 689 N.Y.S.2d 521).

 In response, the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Although New Jersey law requires that an insurer show “appreciable prejudice” before it disclaims coverage based upon an insured's failure to timely notify it of an occurrence (see Molyneaux v. Molyneaux, 230 N.J.Super. 169, 173, 553 A.2d 49;  Cooper v. Government Empl. Ins. Co., 51 N.J. 86, 237 A.2d 870), New York law does not impose such a requirement (see Argo Corp. v. Greater N.Y. Mut. Ins. Co., 4 N.Y.3d 332, 794 N.Y.S.2d 704, 827 N.E.2d 762;  Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., supra at 440, 340 N.Y.S.2d 902, 293 N.E.2d 76;  Blue Ridge Ins. Co. v. Jiminez, 7 A.D.3d 652, 654, 777 N.Y.S.2d 204).

Therefore, the Supreme Court properly granted the motion of the insurer defendants for summary judgment and properly denied the plaintiffs' cross motion for summary judgment.

The plaintiffs' remaining contentions are without merit.

Since this is a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of the insurer defendants (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).