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Supreme Court, Appellate Division, First Department, New York.

Victor SOLOMON, et al., Plaintiffs-Respondents, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellant.

Decided: August 16, 2007

ANDRIAS, J.P., SAXE, MARLOW, NARDELLI, WILLIAMS, JJ. L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (Maureen E. O'Connor of counsel), for appellant. Diamond and Diamond, LLC, New York (Stuart Diamond of counsel), for respondents.

Order, Supreme Court, New York County (Herman Cahn, J.), entered June 1, 2006, which denied defendant's motion, pursuant to CPLR 3211 (a)(7), to dismiss the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed.   The Clerk is directed to enter judgment accordingly.

We agree with the motion court that section A.1 of defendant's policy is not ambiguous, and that plaintiffs' claim herein does not fall within the ambit of the policy's coverage.   We disagree with the motion court, however, regarding the applicability of Insurance Law § 3420(d).

In Matter of Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 712 N.Y.S.2d 433, 734 N.E.2d 745 [2000], the Court of Appeals stated that:

“Disclaimer pursuant to [Insurance Law] section 3420(d) is unnecessary when a claim falls outside the scope of the policy's coverage portion.   Under those circumstances, the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed.   By contrast, disclaimer pursuant to section 3420(d) is necessary when denial of coverage is based on a policy exclusion without which the claim would be covered.”

(id. at 188-189, 712 N.Y.S.2d 433, 734 N.E.2d 745, see also Lutheran Social Servs. of Metro. N.Y., Inc. v. Guide One Ins., 35 A.D.3d 285, 827 N.Y.S.2d 122 [2006] ).

Here, since the claim falls outside of the scope of the policy, a disclaimer is unnecessary, rendering the timeliness of defendant's notice irrelevant.