Am. Transit Ins. Co. v. State Farm Fire & Cas.

• Decision Date: 17 October 2013
• Docket Number: Index No. 116082/2009
• Parties: AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff v. STATE FARM FIRE AND CASUALTY a/s/o SUN Y. LIU, APPLE POOL CONTRACTING, and LISA BASS, Defendants
• Court: New York Supreme Court

2013 NY Slip Op 32721

AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff
v.
STATE FARM FIRE AND CASUALTY a/s/o SUN Y. LIU,
APPLE POOL CONTRACTING, and LISA BASS, Defendants

Index No. 116082/2009

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 46

Filed: October 31, 2013
DATED: October 17, 2013

DECISION AND ORDER

LUCY BILLINGS, J.:

I. BACKGROUND

Plaintiff insured a commercial motor vehicle owned by defendant Apple Pool Contracting. In May 2002, defendant Bass, while operating the vehicle, was involved in a collision with another motor vehicle owned by defendant State Farm Fire and Casualty's insured. State Farm commenced an action and obtained a judgment against defendants Apple Pool Contracting and Bass in December 2003 for damage to the vehicle owned by State Farm's insured.

In this declaratory judgment action, plaintiff seeks summary judgment declaring that plaintiff owes no obligation to defend or indemnify plaintiff's insureds, Apple Pool Contracting and Bass. C.P.L.R. §§ 3001, 3212(b). Plaintiff claims that it timely and adequately denied coverage due to these defendants' failure to notify plaintiff of the collision, the property damages, or State Farm's action against them, in violation of Apple Pool

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Contracting's insurance policy requiring immediate notice of these events as conditions precedent to coverage.

Plaintiff never served defendant Apple Pool Contracting, a corporation, in this action. Although plaintiff claims this defendant was dissolved in June 2004, the document on which plaintiff relies indicates only that the New York State Secretary of State maintained no record of Apple Pool Contracting as of November 27, 2009, when plaintiff attempted service on this defendant. Aff. of Marjorie Bornes Ex. G.

II. SUMMARY JUDGMENT STANDARDS

Plaintiff, to obtain summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc. 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). Only if plaintiff satisfies this standard, does the burden shift to defendants to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). If plaintiff fails to meet its initial burden, the court must deny summary judgment despite any insufficiency in the opposition. JMD Holding Corp. v. Congress Fin. Corp, 4 N.Y.3d at 384; Romero v. Morrisania Towers Hous. Co.

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Ltd. Partnership, 91 A.D.3d 507, 508 (1st Dep't 2012); Chubb Natl. Ins. Co. v. Platinum Customcraft Corp., 38 A.D.3d 244, 245 (1st Dep't 2007); Atlantic Mut. Ins. Co. v. Joyce Intl., Inc., 31 A.D.3d 352 (1st Dep't 2006). See Roman v. Hudson Tel. Assoc., 15 A.D.3d 227, 228 (1st Dep't 2005). In evaluating the evidence for purposes of plaintiff's motion, the court construes the evidence in the light most favorable to defendants. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triboroucrh Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004).

III. PLAINTIFF'S EVIDENCE

A. Lack of Notice of the Collision, Damages, or Lawsuit

An affidavit supporting summary judgment must indicate the witness' personal knowledge of the facts attested to. C.P.L.R. § 3212(b); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d at 384; Romero v. Morrisania Towers Hous. Co. Ltd. Partnership, 91 A.D.3d at 508; Spector v. Cushman & Wakefield, Inc., 87 A.D.3d 422, 423 (1st Dep't 2011); De La Cruz v. Lettera Sign & Elec. Co., 77 A.D.3d 566 (1st Dep't 2010). In support of plaintiff's motion, its claims director attests that plaintiff never received any notice of the collision, the property damages, or the action against plaintiff's insureds and only received notice on October 30, 2009, of State Farm's December 2003 judgment against its insureds. Aff. of Richard Carroll ¶¶ 2-4. The claims director attests that, in response, and after reviewing the insureds' case file, plaintiff mailed notices to all defendants, State Farm, Apple Pool Contracting, and Bass, on November 4, 2009,

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disclaiming coverage to both the insureds and to claimant State Farm based on the insureds' breach of a material provision of the policy. Id. ¶ 4. Although plaintiff presents evidence that plaintiff mailed the disclaimer to defendants, plaintiff admits that its disclaimer to defendant Apple Pool Contracting was returned as...