Hill v. Travelers Property Casualty Insurance

15 A.D.3d 970, 788 N.Y.S.2d 905, 2005 N.Y. App. Div. LEXIS 1211

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 2005
• Status: Published

Opinion

Appeals from a judgment (denominated order) of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered November 24, 2003. The judgment granted the motion of defendant Travelers Property Casualty Insurance Company for summary judgment dismissing the amended complaint against it and declaring that it has no duty to defend or indemnify plaintiff in the underlying personal injury action and denied the cross motions of plaintiff and defendant Brian T. Leistner.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by denying the motion, reinstating the amended complaint against defendant Travelers Property Casualty Insurance Company and vacating the declaration and as modified the judgment is affirmed without costs.

Memorandum: In this declaratory judgment action arising from the disclaimer of insurance coverage by defendant Travelers Property Casualty Insurance Company (Travelers) concerning a liability claim brought by defendant Brian T. Leistner (Leistner) against its insured, plaintiff Donald G. Hill (Hill), Leistner and Hill appeal from an order granting the motion of Travelers for summary judgment dismissing the amended complaint against it and granting a declaration in its favor and denying their cross motions for summary judgment. We conclude that Supreme Court erred in granting Travelers’ motion. Although Travelers met its initial burden of establishing its entitlement to judgment as a matter of law (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), Leistner and Hill raised a triable issue of fact in opposition to the motion by submitting evidence that Travelers may not have sent its notice of disclaimer “as soon as is reasonably possible” (Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1030 [1979], rearg denied 47 NY2d 951 [1979]; see Meilutis v Commercial Union Ins. Co., 251 AD2d 1015 [1998]; Utica Fire Ins. Co. of Oneida County v Spagnolo, 221 AD2d 921, 922 [1995]). We therefore modify the judgment by denying the motion, reinstating the amended complaint against Travelers and vacating the declaration in its favor. Present — Pigott, Jr., PJ., Green, Hurlbutt, Martoche and Hayes, JJ.