Commercial Underwriters Insurance v. Best Cleaning Corp.

Appellate Division of the Supreme Court of New York

Commercial Underwriters Insurance v. Best Cleaning Corp.

6 A.D.3d 335, 775 N.Y.S.2d 516, 2004 N.Y. App. Div. LEXIS 5006

Appellate Division of the Supreme Court of the State of New York·Decided April 27, 2004·Published

Opinion

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 29, 2002, which denied plaintiffs motion for summary judgment, unanimously affirmed, with costs.

The underlying assault was a covered “occurrence” under the insured’s policy, and the claimed exclusion was inapplicable (Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141 [2000]; see RJC Realty Holding Corp. v Republic Franklin Ins. Co., 2 NY3d 158 [2004]). While the court should not have addressed the insurer’s argument, which was raised improperly for the first time in reply (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]) and was not based on any notice or pleading seeking relief against respondent, the denial of relief grounded on an asserted late notice of claim by the purported additional insured (see Structure Tone v Burgess Steel Prods. Corp., 249 AD2d 144, 145 [1998]) was proper (see New York Tel. Co. v Travelers Cas. & Sur. Co. of Am., 280 AD2d 268 [2001]; National Union Fire Ins. Co. of Pittsburgh v Insurance Co. of N. Am., 188 AD2d 259, 261 [1992], lv denied 81 NY2d 709 [1993]).

We have considered appellant’s other contentions and find them unavailing. Concur—Nardelli, J.P., Saxe, Sullivan and Gonzalez, JJ.

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Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 29, 2002, which denied plaintiffs motion for summary judgment, unanimously affirmed, with costs.

The underlying assault was a covered “occurrence” under the insured’s policy, and the claimed exclusion was inapplicable (Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141 [2000]; see RJC Realty Holding Corp. v Republic Franklin Ins. Co., 2 NY3d 158 [2004]). While the court should not have addressed the insurer’s argument, which was raised improperly for the first time in reply (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]) and was not based on any notice or pleading seeking relief against respondent, the denial of relief grounded on an asserted late notice of claim by the purported additional insured (see Structure Tone v Burgess Steel Prods. Corp., 249 AD2d 144, 145 [1998]) was proper (see New York Tel. Co. v Travelers Cas. & Sur. Co. of Am., 280 AD2d 268 [2001]; National Union Fire Ins. Co. of Pittsburgh v Insurance Co. of N. Am., 188 AD2d 259, 261 [1992], lv denied 81 NY2d 709 [1993]).

We have considered appellant’s other contentions and find them unavailing. Concur—Nardelli, J.P., Saxe, Sullivan and Gonzalez, JJ.

Commercial Underwriters Insurance v. Best Cleaning Corp., 6 A.D.3d 335, 775 N.Y.S.2d 516, 2004 N.Y. App. Div. LEXIS 5006 (N.Y. Ct. App. 2004).

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Opinion

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