Fook Cheung Lung Realty Corp. v. Yang Tze River Realty Corp.

94 A.D.3d 560, 942 N.Y.S.2d 342

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 2012
• Status: Published

Opinion

Order and judgment, Supreme Court, New York County (Joan A. Madden, J.), entered April 27, 2010, granting J&A Concrete Corp.’s motion for summary judgment declaring that QBE Insurance is obligated to defend and indemnify it in an underlying property damage action, unanimously affirmed, with costs.

J&A provided its insurer with notice of plaintiffs property damage claim within a reasonable time (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). J&A made a prima facie showing on its motion through the affidavit of its vice president stating the date that J&A arrived at the construction site and the extent of its duties and denying knowledge of the property damage until J&A’s receipt of an attorney’s letter in May of 2007, coupled with the deposition testimony of plaintiffs president regarding the date he first noticed the damage, which was before J&A’s arrival. QBE’s claim in opposition that J&A had knowledge of the damage before May of 2007 failed to raise an issue of fact, as evidence of conversations between plaintiffs president and a representative of the general contractor working at the adjoining premises and of complaints to the Department of Buildings would not necessarily have put J&A on notice, and it is mere conjecture that J&A was in fact told by others of the damage. QBE’s claimed need for discovery to oppose the motion reflected an ineffectual mere hope (see MAP Mar. Ltd. v China Constr. Bank Corp., 70 AD3d 404 [2010]). In view of the foregoing, we also find that the determination as to the duty to indemnify was not premature. Concur— Andrias, J.P., Friedman, Moskowitz, Freedman and ManzanetDaniels, JJ. [Prior Case History: 2010 NY Slip Op 30986(U).]