Bertalo's Restaurant Inc. v. Exchange Ins. Co.
| Decision Date | 09 June 1997 |
| Citation | 658 N.Y.S.2d 656,240 A.D.2d 452 |
| Parties | BERTALO'S RESTAURANT INC., Appellant, v. EXCHANGE INSURANCE COMPANY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Pagano & Shaw, White Plains, (Robert P. Pagano and Terrence J. O'Connor, of counsel), for appellant.
Bouck, Holloway, Kiernan and Casey, Albany, (Donald J. Feerick, Jr., of counsel), for respondent.
Before BRACKEN, J.P., and ROSENBLATT, THOMPSON and KRAUSMAN, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for breach of a property insurance policy, the plaintiff appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Gurahian, Special Referee), entered February 27, 1996, as denied those branches of its motion which were for (a) summary judgment dismissing the defendant's affirmative defenses, (b) partial summary judgment to recover under the policy, (c) leave to serve an amended complaint asserting five additional causes of action, and (d) leave to assert a sixth cause of action to recover damages for conversion which imposed a condition thereon, (2), as limited by its brief, from so much of an order of the same court (Gurahian, Special Referee) entered April 17, 1996, as denied that branch of its motion which was to impose sanctions upon the defendant and its counsel, and (3), as limited by its brief, from so much of an order of the same court (Scarpino, J.), entered April 19, 1996, as, upon renewal by the defendants, modified a prior order of the same court granting its motion to compel discovery, and denied those branches of its motion which were to compel discovery of documents 1-8, 11-18, and 20-26, in the privilege log and granted those branches of its motion which were to compel discovery of documents 19, 27, 28, and 29 only to the extent of compelling discovery of those documents as redacted.
ORDERED that the order entered April 19, 1996, is modified by deleting the provisions thereof which denied those branches of the plaintiff's motion which were to compel discovery of documents 1-8, 11, 12, and 14-18, and 20-26 in the privilege log and directed discovery of documents numbered 19 and 27-29 only as redacted and substituting therefor a provision granting the motion to compel discovery of documents 1-8, 11, 12, 14-29 in the privilege log in their entirety; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff, a fire insurance policyholder (hereinafter the policyholder), contends that the defendant insurance carrier made an internal decision to deny coverage of its fire damage claim but failed to disclose that decision, while continuing to solicit the policyholder's cooperation. It was not until approximately two months after the action was initiated that the carrier advised the policyholder that coverage was denied on the basis, inter alia, that the policyholder was a procuring cause of the fire that destroyed the property. The policyholder argues that the carrier waived its affirmative defenses and should be estopped from relying on those defenses.
We reject the carrier's contention that a property damage insurance carrier has no duty to inform its policyholder at any time that it intends to deny coverage. Although the date that the carrier makes a firm decision to reject the claim is not necessarily the date it issues a disclaimer, once a demand for payment has been made and a "firm decision to reject a claim" has been made, the carrier is obligated to issue a disclaimer of coverage (see, Landmark Ins. Co. v. Beau Rivage Rest., 121 A.D.2d 98, 101, 509 N.Y.S.2d 819). However, the denial of the policyholder's motion to dismiss the affirmative defenses asserted by the insurance carrier was appropriate because, in the case before us, the policyholder failed to establish that the carrier's defenses were waived or that the policyholder was prejudiced to such an extent that the carrier...
To continue reading
Request your trial
-
G.P. v. S.S.
... ... Inc. v. Baiden, 36 N.Y.2d 539 (1975). For purposes of ... v. Winterthur ... Intl. Am. Ins. Co., 24 A.D.3d 742 (2d Dept. 2005); ... see generally ... See generally Bertalo's ... Restaurant v. Exchange Ins. Co., 240 A.D.2d 452 (2d ... Dept. 1997); ... ...
-
Donohue v. Fokas
...N.Y.S.2d 272; Brooklyn Union Gas Co. v. American Home Assur. Co., 23 A.D.3d 190, 191, 803 N.Y.S.2d 532; Bertalo's Rest. v. Exchange Ins. Co., 240 A.D.2d 452, 454–455, 658 N.Y.S.2d 656; Agovino v. Taco Bell 5083, 225 A.D.2d at 571, 639 N.Y.S.2d 111; Landmark Ins. Co. v. Beau Rivage Rest., 12......
-
Drennen v. Certain Underwriters At Lloyd's of London (In re Residential Capital, LLC)
...See, e.g., Stephenson Equity , 2002 WL 59418, at *3 ; Brooklyn Union , 803 N.Y.S.2d at 534 ; Bertalo's Rest. Inc. v. Exch. Ins. Co. , 240 A.D.2d 452, 658 N.Y.S.2d 656, 658 (2d Dep't 1997). However, Plaintiffs do not cite any cases—and the Court is aware of none—holding that the attorney-cli......
-
Advanced Chimney, Inc. v. Graziano
...of a legal character (see Melworm v. Encompass Indem. Co., 112 A.D.3d at 795, 977 N.Y.S.2d 321 ; Bertalo's Rest. v. Exchange Ins. Co., 240 A.D.2d 452, 454, 658 N.Y.S.2d 656 ). Nor was the file protected as the work product of KBR (see Bertalo's Rest. v. Exchange Ins. Co., 240 A.D.2d at 454,......
-
Privileges
...in an agency relationship with a party, or were of a business rather than legal nature. Bertalo’s Restaurant Inc. v. Exchange Ins. Co. , 240 A.D.2d 452, 658 N.Y.S.2d 656 (2d Dept. 1997). Investigations of property damage claims by attorneys are not privileged simply because attorneys prepar......
-
Table of cases
...Of Family & Children’s Services, 173 A.D.2d 670, 570 N.Y.S.2d 586 (2d Dept. 1991), § 6:60 Bertalo’s Restaurant Inc. v. Exchange Ins. Co., 240 A.D.2d 452, 658 N.Y.S.2d 656 (2d Dept. 1997), § 7:80 Bertram v. SV Danco Corp., 300 A.D.2d 1108, 751 N.Y.S.2d 815 (4th Dept. 2002), § 18:60 Berwick v......
-
Privileges
...in an agency relationship with a party, or were of a business rather than legal nature. Bertalo’s Restaurant Inc. v. Exchange Ins. Co. , 240 A.D.2d 452, 658 N.Y.S.2d 656 (2d Dept. 1997). Investigations of property damage claims by attorneys are not privileged simply because attorneys prepar......
-
Privileges
...in an agency relationship with a party, or were of a business rather than legal nature. Bertalo’s Restaurant Inc. v. Exchange Ins. Co., 240 A.D.2d 452, 658 N.Y.S.2d 656 (2d Dept. 1997). Investigations of property damage claims by attorneys are not privileged simply because attorneys prepare......