Adirondack Ins. Exch. v. Sejour

2024 NY Slip Op 30354(U)

• Court: New York Supreme Court, New York County
• Decided: January 30, 2024
• Status: Unpublished

Opinion

Adirondack Ins. Exch. v Sejour 2024 NY Slip Op 30354(U) January 30, 2024 Supreme Court, New York County Docket Number: Index No. 655462/2020 Judge: Suzanne Adams Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 655462/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 01/30/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SUZANNE ADAMS PART 39 Justice -------------------X INDEX NO. 655462/2020 ADIRONDACK INSURANCE EXCHANGE, MOTION DATE N/A Plaintiff, MOTION SEQ. NO. 001 - V -

MELISSA SEJOUR, PETERSON ROUSSE, MOHAMMED DECISION + ORDER ON RAHMAN MOTION Defendants. -------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, ·13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,27,28,29,30,31, 32,33,34,35,36, 37,38,39,40,41,42,43, 44,45,46,47,48,49,50, 51,52,53, 54,55,56,57,58,59,60,61,62,63,64,65,66 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, it is ordered that plaintiffs motion and the cross-motion

of defendants Melissa Sejour and Peterson Rousse are denied. Plaintiff is a domestic insurance

corporation which issued a homeowner's insurance policy to defendant Sejour as the named

insured for the policy period March 15, 2016-2017 for the premises located at 933 East 86 Street,

Brooklyn. Defendant Rousse is also a named insured under the policy. Defendant Mohammed

Rahman alleges he was injured while working at the premises on November 24, 2016, and

commenced a personal injury action against defendant Rousse which is currently pending in Kings

County. Plaintiff commenced this action in October 2020 seeking a declaratory judgment that it

has no duty to defend or indemnify defendants Sejour and Rousse in the underlying action.

Plaintiff now moves pursuant to CPLR 3212 for summary judgment declaring that it has

no duty to defend or indemnify Sejour or Rousse in the underlying action. Plaintiff maintains that

(1) there was no coverage in the first instance; (2) its disclaimer was timely; and (3) defendants

cannot invoke equitable estoppel. Defendant Rahman opposes the motion. Defendants Sejour and

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Rousse cross-move pursuant to CPLR 3212 for an order declaring the insurance policy at issue to

be enforceable and that any loss in the underlying personal injury action is covered under the

policy. Plaintiff opposes the cross-motion.

It is well-settled that "the proponent of a summary judgment motion must make a prima

facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to

demonstrate the absence of any material issues of fact." Alvarez v. ProspectHospital, 68 N.Y.2d

320,324 (1986) (citing Winegradv. New York University Medical Center, 64 N.Y.2d 851 (1985)).

Summary judgment will only be granted if there are no genuine, triable issues of fact. Assaf v.

Ropog Cab Corp., 544 N.Y.S.2d 834, 835 (1st Dep't 1989). Further, whether an insurer is required

to disclaim coverage depends on the circumstances of the contractual relationship with the insured.

If an insurance applicant fails to disclose material facts, such that the application is misleading or

incorrect, they cannot recover from the insurer. See Klapholtz v. New York Life Ins. Co., 219 N.Y.S.

64, 67 (1st Dep't 1926). "Disclaimer pursuant to [Insurance Law] section 3420(d) is unnecessary

when ... 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 ... is necessary when denial of coverage is based on a policy exclusion

without which the claim would be covered ...." Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d

185. 188-89 (2000). Insurance Law§ 3420 (d) requires an insurer to disclaim liability "as soon as

is reasonably possible .... " This must be done "once the insurer has sufficient facts entitling it to

disclaim ...." First Fin. Ins. Co. v. Jetco Contr. Corp., I N.Y.3d 64, 66 (2003). As such, the

insurer bears the burden to establish that the delay in disclaiming was excusable because of the

need and difficulty in completing a thorough and diligent investigation. Id. at 69. Finally, to invoke

equitable estoppel, and thereby preclude an insurer's untimely disclaimer, the insured must show

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that they have "been prejudiced in some significant way by the conduct of the [insurer]." Travelers

Prop. Cas. v. Weiner, 666 N.Y.S.2d 392, 395 (Sup. Ct. Tompkins Co. 1997).

Here, it is unclear from the record as to whether the subject premises was non-conforming at

the onset of the insurance contract. A statement given by defendant Sejour identified tenants in the

subject premises "back in 2016," but it is unclear whether this occurred before or after March 15,

2016. (NYSCEF 23). Thus, it cannot be said as a matter oflaw that there was no coverage, which

would trigger any duty to disclaim by the plaintiff.

Moreover, even if there was no question that a disclaimer of coverage was warranted,

plaintiff's denial of coverage was untimely. Plaintiff received its first notice of the claim and

lawsuit on November 26, 2018. Plaintiff received statements from the insureds in December 2018

and January 2019 that the subject premises was a three-family house, and thus, did not fall within

the insurance policy's coverage. Yet plaintiff did not disclaim coverage until July 28, 2020.

(NYSCEF 29). Where the insurer possessed sufficient facts to deny coverage and yet delayed the

disclaimer for 30 days or longer, courts have found such a disclaimer untimely as a matter of law.

See Bovis Lend Lease LMB, Inc. v. Royal Surplus Lines Ins. Co., 806 N.Y.S.2d 53, 58 (1st Dep't

2005) (collecting cases). Thus, plaintiffs delay of a year and a half in disclaiming is untimely as

a matter oflaw. However, whether defendants were in fact prejudiced by the delay in disclaiming

coverage is itself a question of fact for the trier thereof.

Accordingly, it is hereby

ORDERED that plaintiffs motion for summary judgment is denied without prejudice, with

leave to renew.

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This constitutes the decision and order of the court.

01/30/2024 DATE ~ SUZANNE ADAMS, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED ~ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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