SP ASSOCIATES LLC v. INSURANCE COMPANY OF GREATER NEW YORK

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SP & S ASSOCIATES, LLC, Plaintiff-Respondent, v. INSURANCE COMPANY OF GREATER NEW YORK, etc., Defendant-Appellant.

Decided: January 25, 2011

SAXE, J.P., MOSKOWITZ, RICHTER, MANZANET-DANIELS, ROMÁN, JJ. Thomas D. Hughes, New York (Richard Rubinstein of counsel), for appellant. Rose & Rose, New York (Dean Dreiblatt of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 18, 2010, which denied defendant's motion to dismiss a declaratory judgment action seeking to hold defendant responsible for defending and indemnifying plaintiff insured in a personal injury action, unanimously reversed, on the law and the facts, without costs, and the motion granted to the extent that it is declared that defendant has no duty to defend or indemnify plaintiff in the underlying action.

The subject insurance policy's notice of claim condition precedent to coverage required the insured corporate plaintiff to notify defendant insurer of an occurrence which might result in a claim “as soon as practicable.” The receipt of service of a personal injury summons with notice by the Secretary of State, as plaintiff's designated agent (Limited Liability Company Law § 301, § 303), constituted receipt by the plaintiff itself (Cedeno v. Wimbledon Bldg. Corp., 207 A.D.2d 297, 298 [1994], lv dismissed 84 N.Y.2d 978 [1994] ). The fact that plaintiff did not actually receive a copy of the summons with notice, due to its failure to keep its address current with the Secretary of State, does not excuse its noncompliance with the notice requirements of the policy. As plaintiff did not provide notice of the action to its insurer until receipt of a motion for default judgment some five-and-a-half months after service of process, defendant was entitled to disclaim coverage (Briggs Ave. LLC v. Insurance Corp. of Hannover, 11 NY3d 377 [2008]; 26 Warren Corp. v. Aetna Cas. & Sur. Co. (253 A.D.2d 375, 376 [1998] ).