Lighting Horizons v. Solomon R. Guggenheim Foundation

205 A.D.2d 466, 614 N.Y.S.2d 132, 1994 N.Y. App. Div. LEXIS 7036

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1994
• Status: Published

Opinion

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered February 7, 1994, which, inter alia, denied Royal Insurance’s ("Royal”) motion for summary judgment dismissing the fourth-party complaint, denied Royal’s cross-motion for dismissal of the cross-claim asserted by A&V Contracting ("A&V”), dismissed Royal’s cross-claims seeking subrogation as against A&V, and which denied portions of A&V’s motion for partial summary judgment, unanimously affirmed, without costs.

The IAS Court properly determined that there exist questions of fact as to when the fire loss and damage became known to Guggenheim’s " 'Home Office Insurance Department’ ”, when said department reported the loss of damage " 'with full particulars to Johnson & Higgins,’ ” Guggenheim’s insurance broker, and whether said reporting occurred " '[a]s soon as practicable’ ” after the Home Office Insurance Department acquired said knowledge (Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 NY2d 436; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 19). There are also questions of fact, which may be material as to whether A&V timely notified Royal of the damage. We also note that since A&V is an additional insured under the Royal policy, Royal cannot recover over and against A&V in subrogation (see, New York Bd. of Fire Underwriters v Trans Urban Constr. Co., 91 AD2d 115,120, affd 60 NY2d 912).

We have considered all other claims and find them to be meritless. Concur—Rosenberger, J. P., Ellerin, Ross, Rubin and Nardelli, JJ.