Castillo v. Prince Plaza, LLC

Decision Date28 September 2016
Citation38 N.Y.S.3d 74,2016 N.Y. Slip Op. 06191,142 A.D.3d 1127
Parties Fabricio Ivan Hernandez CASTILLO, et al., plaintiffs, v. PRINCE PLAZA, LLC, defendant third-party plaintiff-respondent; Metal Stone Construction, Inc., et al., third-party defendants, Century Surety Company, third-party defendant-appellant.
CourtNew York Supreme Court — Appellate Division

Hurwitz & Fine, P.C., Buffalo, NY (Audrey A. Seeley of counsel), for third-party defendant-appellant.

Weg and Myers, P.C., New York, NY (Dennis T. D'Antonio, Gina M. Santangelo, and Joshua Mallin of counsel), for defendant third-party plaintiff-respondent.

L. PRISCILLA HALL, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.

In an action to recover damages for personal injuries, etc., and a third-party action, inter alia, for a judgment declaring that the third-party defendant Century Surety Company is obligated to defend and indemnify the defendant third-party plaintiff, Prince Plaza, LLC, in the main action, the third-party defendant Century Surety Company appeals from an order of the Supreme Court, Kings County (Walker, J.), dated March 3, 2014, which denied its motion for summary judgment dismissing the third-party complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced the main action against Prince Plaza, LLC (hereinafter Prince Plaza), to recover damages for personal injuries. In an order dated January 9, 2012 (hereinafter the January order), the Supreme Court granted the plaintiffs' motion for leave to enter a default judgment against Prince Plaza upon its failure to appear or answer the complaint. According to Prince Plaza, it did not know about the main action until February 24, 2012, when it received a copy of the January order. On February 28, 2012, Prince Plaza forwarded the summons, complaint, and the January order to its insurer, the third-party defendant Century Surety Company (hereinafter Century). Century disclaimed coverage on the ground that it was not provided with timely notice of the action, as required by the subject insurance policy.

By so-ordered stipulation dated June 11, 2012, Prince Plaza's default was vacated and the case restored to the active calendar. In September 2012, Prince Plaza commenced a third-party action seeking a judgment declaring that Century was obligated to defend and indemnify it in the main action. In September 2013, Century moved for summary judgment dismissing the third-party complaint insofar as asserted against it. Century contended that Insurance Law § 3420(c)(2)(B)

created an irrebuttable presumption of prejudice in Century's favor since Prince Plaza did not provide Century with notice of the occurrence or main action until after a default judgment had already been entered against Prince Plaza. In the alternative, Century contended that Insurance Law § 3420(c)(2)(A) created a presumption in Century's favor since Century did not receive notice of the underlying accident until more than two years after it occurred. The Supreme Court denied Century's motion, and Century appeals.

“It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature, and where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” (Patrolmen's Benevolent Assn. of City of N.Y. v. City of New York, 41 N.Y.2d 205, 208, 391 N.Y.S.2d 544, 359 N.E.2d 1338

[citations omitted]; see

Matter of Judge Rotenberg Educ. Ctr. v. Maul, 91 N.Y.2d 298, 303, 670 N.Y.S.2d 173, 693 N.E.2d 200 ; Matter of

Wise v. Jennings, 290 A.D.2d 702, 703, 736 N.Y.S.2d 171 ). Insurance Law § 3420(c)(2)(B) provides, in pertinent part, that “an irrebuttable presumption of prejudice shall apply if, prior to notice, the insured's liability has been determined by a court of competent jurisdiction or by binding arbitration; or if the insured has resolved the claim or suit by settlement or other compromise.”

Here, contrary to Century's contention, based on the plain language of Insurance Law § 3420(c)(2)(B)

, an irrebuttable presumption of prejudice did not apply in this case. Although a default judgment was previously entered in the main action against Prince Plaza, the default judgment was vacated more than a year before Century raised Insurance Law § 3420(c)(2)(B) as a ground upon which it was not obligated to defend and indemnify Prince Plaza. Thus, the Supreme Court correctly determined that Prince Plaza's liability had not actually been “determined” by a court of competent jurisdiction or by binding arbitration” (Insurance Law § 3420[c] [2][B] ; cf. Matter of

Sportsfield Specialities, Inc. v. Twin City Fire Ins. Co., 45 Misc.3d 1201[A], 2012 WL 11887669, 2012 N.Y. Slip Op. 52509[U] [Sup.Ct., Delaware County 2012] ). The plain intent and purpose of Insurance Law § 3420(c)(2)(B), which is to prevent insurers which have continuously collected premiums to disclaim coverage based upon an inconsequential technicality, would be defeated if Century were allowed to...

To continue reading

Request your trial
17 cases
  • W. Rogowski Farm, LLC v. Cnty. of Orange
    • United States
    • New York Supreme Court — Appellate Division
    • March 13, 2019
    ...391 N.Y.S.2d 544, 359 N.E.2d 1338 ; Feinman v. County of Nassau, 154 A.D.3d 739, 741, 63 N.Y.S.3d 395 ; Hernandez Castillo v. Prince Plaza, LLC, 142 A.D.3d 1127, 1129, 38 N.Y.S.3d 74 ). With that all in mind, the language of CPLR 5513(a) as to who serves notice of entry is not limited to th......
  • U.S. Bank Nat'l Ass'n v. Gordon
    • United States
    • New York Supreme Court — Appellate Division
    • October 16, 2019
  • People v. Buyund
    • United States
    • New York Supreme Court — Appellate Division
    • November 13, 2019
    ...391 N.Y.S.2d 544, 359 N.E.2d 1338 ; Feinman v. County of Nassau , 154 A.D.3d 739, 741, 63 N.Y.S.3d 395 ; Hernandez Castillo v. Prince Plaza, LLC , 142 A.D.3d 1127, 1129, 38 N.Y.S.3d 74 )."In construing statutes, it is a well-established rule that resort must be had to the natural significat......
  • Robinson v. Northwell Health, Inc.
    • United States
    • New York Supreme Court
    • December 6, 2021
  • Request a trial to view additional results
4 firm's commentaries
  • New York's Second Department Splits From First Department
    • United States
    • Mondaq United States
    • September 16, 2021
    ...became a notice-prejudice state. See Castillo v. Prince Plaza, LLC, 43 Misc. 3d 335, 338, 981 N.Y.S.2d 906, 908 (Sup. Ct. 2014), aff'd, 142 A.D.3d 1127, 38 N.Y.S.3d 74 (2016) (discussing the notice-prejudice rule in New York 8. Id. 9. Id. 10. Id. 11. Id. 12. Id. at 31-32, 629. 13. Id. at 32......
  • New York's Second Department Splits From First Department
    • United States
    • Mondaq United States
    • September 16, 2021
    ...became a notice-prejudice state. See Castillo v. Prince Plaza, LLC, 43 Misc. 3d 335, 338, 981 N.Y.S.2d 906, 908 (Sup. Ct. 2014), aff'd, 142 A.D.3d 1127, 38 N.Y.S.3d 74 (2016) (discussing the notice-prejudice rule in New York 8. Id. 9. Id. 10. Id. 11. Id. 12. Id. at 31-32, 629. 13. Id. at 32......
  • State Appellate Courts Are Split
    • United States
    • Mondaq United States
    • October 2, 2021
    ...became a notice-prejudice state. See Castillo v. Prince Plaza, LLC, 43 Misc. 3d 335, 338, 981 N.Y.S.2d 906, 908 (Sup. Ct. 2014), aff'd, 142 A.D.3d 1127, 38 N.Y.S.3d 74 (2016) (discussing the notice-prejudice rule in New York state). 8. Id. 9. Id. 10. Id. 11. Id. 12. Id. at 31-32, 629. 13. I......
  • State Appellate Courts Are Split
    • United States
    • Mondaq United States
    • October 2, 2021
    ...became a notice-prejudice state. See Castillo v. Prince Plaza, LLC, 43 Misc. 3d 335, 338, 981 N.Y.S.2d 906, 908 (Sup. Ct. 2014), aff'd, 142 A.D.3d 1127, 38 N.Y.S.3d 74 (2016) (discussing the notice-prejudice rule in New York state). 8. Id. 9. Id. 10. Id. 11. Id. 12. Id. at 31-32, 629. 13. I......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT