Freeway Co. v. Technology Insurance

Order, Supreme Court, New York County (Paul Wooten, J.), entered April 28, 2015, which denied plaintiff’s motion for summary judgment declaring that defendant Technology Insurance Company, Inc. has a duty to defend and indemnify plaintiff in the underlying action, and granted Technology’s motion for summary judgment declaring in its favor, and dismissed the complaint, unanimously modified, on the law, to declare that Technology has no duty to defend or indemnify plaintiff in the underlying action, and otherwise affirmed, without costs.

Plaintiff failed to establish prima facie that its failure to give timely notice of the occurrence to Technology should be excused on the ground that it had a reasonable belief in non-liability (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436 [1972]; SSBSS Realty Corp. v Public Serv. Mut. Ins. Co., 253 AD2d 583 [1st Dept 1998]). The record demonstrates that plaintiff unreasonably failed to keep itself informed of potential claims for damages arising from the incident (see e.g. 310 E. 74 LLC v Fireman’s Fund Ins. Co., 106 AD3d 469 [1st Dept 2013]; Tower Ins. of N.Y. v Amsterdam Apts., LLC, 82 AD3d 465 [1st Dept 2011]).

We have considered plaintiff’s remaining contentions and find them unavailing.

While the motion court reached the correct result, we note that where, as here, a declaratory judgment action is resolved on the merits against the plaintiff, the proper course is to declare in favor of the defendant, rather than dismiss the action (see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951 , 954 [1989]).

Concur — Anosta, J.P., Renwick, Manzanet-Daniels, Kapnick and Gesmer, JJ.