Macro Enterprises, Ltd. v. QBE Insurance

43 A.D.3d 728, 841 N.Y.S.2d 447

Opinion

Order, Supreme Court, New York County (Carol Edmead, J.), entered April 11, 2007, which, insofar as appealed from, denied plaintiffs motion for summary judgment, and granted defendant’s cross motion for summary judgment and declared that plaintiff is not entitled to a defense and indemnity coverage in the underlying third-party action, unanimously affirmed, without costs.

The court properly granted defendant’s cross motion for summary judgment. Plaintiffs failure to notify defendant for more than two years of the underlying occurrence, in which plaintiffs employee was injured in a construction site accident, constituted noncompliance with the condition precedent to coverage and vitiated the contract of insurance (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). Plaintiffs claimed belief of nonliability, on the basis that its injured employee’s exclusive remedy was under the Workers’ Compensation Law, was not reasonable under the circumstances (cf. Tester v Paramount Ins. Co., 220 AD2d 334 [1995]). Concur—Lippman, PJ., Mazzarelli, Sullivan, Nardelli and Sweeny, JJ.