Sphere Drake Insurance v. Aspen Tree Specialists, Inc.

234 A.D.2d 358, 651 N.Y.S.2d 881, 1996 N.Y. App. Div. LEXIS 12989

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1996
• Status: Published

Opinion

—In an action for a judgment declaring the rights and duties of the parties with respect to a policy of insurance, the plaintiff insurance carrier appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Kramer, J.), dated April 9, 1996, which declared that it has an obligation to defend and indemnify the defendant Aspen Tree Specialists, Inc., in an action entitled Graffeo v Aspen Tree Specialists (Index No. 28961/ 94) pending in the same court.

Ordered that the order and judgment is affirmed, with costs.

"When the facts of an occurrence are such that an insured acting in good faith would not reasonably believe that liability will result, notice of the occurrence is given 'as soon as possible’ if given promptly after the insured receives notice that a claim will in fact be made” (D’Aloia v Travelers Ins. Co., 85 NY2d 825, 826; Merchants Mut. Ins. Co. v Hoffman, 56 NY2d 799). Under the circumstances of this case, we agree that notice of the claim was timely given to the plaintiff Sphere Drake Insurance Co. (hereinafter Sphere), and that the court properly declared that Sphere is obligated to defend and indemnify the defendant Aspen Tree Specialists, Inc. (hereinafter Aspen). The incident occurred in May 1994 and the allegedly injured parties, the defendants Frank and Jill Graffeo, served the summons and complaint on Aspen in December 1994. Nevertheless, since the Graffeos never indicated any intention to sue before they served Aspen with the summons and complaint, Aspen’s prompt notice to Sphere after the suit was instituted, albeit seven months after the incident, was given " 'as soon as possible’ ” (D’Aloia v Travelers Ins. Co., supra, at 826). Rosenblatt, J. P., Thompson, Santucci and Altman, JJ., concur.