161 HUDSON LLC v. SIRIUS AMERICA INSURANCE COMPANY

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

161 HUDSON, LLC, respondent, v. SIRIUS AMERICA INSURANCE COMPANY, appellant, et al., defendants.

Decided: February 24, 2009

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO, and RANDALL T. ENG, JJ. White, Quinlan & Staley, LLP, Garden City, N.Y. (Christopher M. Otton of counsel), for appellant. Shapiro, Beilly, Rosenberg & Aronowitz, LLP, New York, N.Y. (Roy J. Karlin of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the defendant Sirius America Insurance Company is obligated to defend and indemnify the plaintiff in an underlying action entitled Zhong K. Wang v. 161 Hudson LLC, pending in the Supreme Court, Kings County, under Index Number 13240/03, the defendant Sirius America Insurance Company appeals from a judgment of the Supreme Court, Kings County (Held, J.), entered April 1, 2008, which, among other things, declared that it is obligated to defend and indemnify the plaintiff in the underlying action.

ORDERED that the judgment is affirmed, with costs.

The Supreme Court properly found that the defendant Sirius America Insurance Company (hereinafter Sirius) is obligated to defend and indemnify the plaintiff in the underlying action, as the plaintiff demonstrated that the delay by Sirius in issuing a disclaimer of coverage for the underlying lawsuit was unreasonable as a matter of law (see Insurance Law § 3420[d];  Tex Dev. Co., LLC v. Greenwich Ins. Co., 51 A.D.3d 775, 858 N.Y.S.2d 682;  Sirius Am. Ins. Co. v. Vigo Constr. Corp., 48 A.D.3d 450, 852 N.Y.S.2d 176;  Liberty Mut. Fire Ins. Co. v. National Cas. Co., 47 A.D.3d 770, 850 N.Y.S.2d 188;  Matter of Allstate Ins. Co. v. Swinton, 27 A.D.3d 462, 811 N.Y.S.2d 108).   Accordingly, Sirius is precluded from disclaiming coverage based on a late notice of claim or policy exclusion (see Insurance Law § 3420[d];  Pile Found. Constr. Co. v. Investors Ins. Co. of Am., 2 A.D.3d 611, 769 N.Y.S.2d 290).

The remaining contentions raised by Sirius either are without merit or need not be reached in light of our determination.

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