Cirone v. Tower Ins. Co. of N.Y.

• Court: New York Supreme Court Appellate Division
• Writing for the Court: CATTERSON
• Citation: 76 A.D.3d 883,908 N.Y.S.2d 178
• Decision Date: 21 September 2010
• Parties: Barbara J. CIRONE, et al., Plaintiffs-Appellants, v. TOWER INSURANCE COMPANY OF NEW YORK, Defendant-Respondent.

908 N.Y.S.2d 178
76 A.D.3d 883

Barbara J. CIRONE, et al., Plaintiffs-Appellants,
v.
TOWER INSURANCE COMPANY OF NEW YORK, Defendant-Respondent.

Supreme Court, Appellate Division, First Department, New York.

Sept. 21, 2010.

908 N.Y.S.2d 179

Godosky & Gentile, P.C., New York (Brian J. Isaac of counsel), for appellants.

Law Office of Max W. Gershweir, New York (Max W. Gershweir of counsel), for respondent.

ANDRIAS, J.P., NARDELLI, CATTERSON, DeGRASSE, MANZANET-DANIELS, JJ.

76 A.D.3d 883

Order, Supreme Court, New York County (Debra A. James, J.), entered February 3, 2009, which granted defendant Tower Insurance Company's motion for summary judgment dismissing the complaint, affirmed, without costs.

Plaintiffs were injured when struck by an employee of Navana Restaurant, Inc., who was making deliveries on a bicycle. Plaintiffs commenced a personal injury action against Navana, who was insured under a policy issued by Tower. Tower brought a declaratory judgment action against Navana to confirm the propriety of its disclaimer of coverage, and the court granted Tower summary judgment on the grounds that Navana's delay in notifying Tower of the occurrence was not reasonably excusable, thereby relieving Tower of the duty to defend and indemnify Navana in the underlying action.

Plaintiffs obtained a judgment in the personal injury action against Navana and proceeded to bring a direct action against Tower as injured parties suing under Insurance Law § 3420(b)(1). In that action, the motion court granted summary judgment to plaintiffs, holding that they gave Tower proper notice of the accident. Tower appealed, and this Court affirmed (39 A.D.3d 435, 835 N.Y.S.2d 111 [2007], lv. denied 9 N.Y.3d 808, 844 N.Y.S.2d 784, 876 N.E.2d 513 [2007] ).

Thereafter, Navana assigned all of its rights and claims against Tower to plaintiffs, who, as Navana's assignees, commenced this action based upon claims that Tower refused to settle the personal injury action within the policy limits in bad faith.

76 A.D.3d 884

The motion court properly granted Tower's motion and dismissed the bad-faith claims. Given that Navana failed to comply with the notice provisions of the policy at issue, it would be estopped from contending that Tower improperly refused to settle the underlying personal injury action within the applicable policy limits. As Navana's assignees, plaintiffs are now suing upon a claim which is subject to the same defenses Tower could have asserted against Navana ( see e.g. Madison Liquidity Invs. 119, LLC v. Griffith, 57 A.D.3d 438, 440, 869 N.Y.S.2d 496 [2008] ). For example, Zeldin v. Interboro Mut. Indem. Ins. Co., 44 A.D.3d 652, 843 N.Y.S.2d 366 [2007] involves an action brought by claimant/assignee standing in the shoes of an insured who had inexcusably failed to notify the carrier of the underlying accident. The Court held that the insurer's defenses against the insured were good as against the claimant ( id. at 653, 843 N.Y.S.2d 366; see also Daus v. Lumbermen's Mut. Cas. Co., 241 A.D.2d 665, 666, 659 N.Y.S.2d 584 [1997], l...