26 WARREN CORPORATION v. AETNA CASUALTY AND SURETY COMPANY

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

26 WARREN CORPORATION, Plaintiff-Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, Defendant-Respondent.

Decided: August 13, 1998

ELLERIN, J.P., TOM, MAZZARELLI and SAXE, JJ. Anthony Gentile, for Plaintiff-Appellant. Brendan W. Nolan, for Defendant-Respondent.

Order, Supreme Court, New York County (Lewis Friedman, J.), entered April 10, 1997, which, inter alia, declared that defendant insurer was not obligated to defend or indemnify plaintiff insured in the underlying action, unanimously affirmed, without costs.

 The subject insurance policy's notice of claim condition precedent to coverage, that “the insured shall immediately forward to [the insurer] every demand, notice, summons or other process received by him or his representative”, is devoid of ambiguity (see, Hovdestad v. Interboro Mut. Indem. Ins., 135 A.D.2d 783, 784, 522 N.Y.S.2d 895), and the receipt of service of the summons and complaint by the Secretary of State, as plaintiff's designated agent, constituted receipt by a representative within the meaning of the policy.   The fact that plaintiff itself did not actually receive a copy, due solely to its own failure to notify the Secretary of State of a change in address of its representative to whom the Secretary was authorized to forward process, does not excuse its noncompliance with the notice requirement of the policy (see, Cedeno v. Wimbledon Bldg., 207 A.D.2d 297, 298, 615 N.Y.S.2d 40, lv. dismissed 84 N.Y.2d 978, 622 N.Y.S.2d 917, 647 N.E.2d 123;  FGB Realty Advisors v. Norm-Rick Realty, 227 A.D.2d 439, 642 N.Y.S.2d 696).

MEMORANDUM DECISION.