Empire City Subway Co. (Ltd.) v. Greater New York Mut. Ins. Co.

Citation358 N.Y.S.2d 691,35 N.Y.2d 8,315 N.E.2d 755
Parties, 315 N.E.2d 755 EMPIRE CITY SUBWAY COMPANY (LIMITED), Respondent v. GREATER NEW YORK MUTUAL INSURANCE COMPANY, Appellant, et al., Defendants.
Decision Date10 July 1974
CourtNew York Court of Appeals

Page 691

358 N.Y.S.2d 691
35 N.Y.2d 8, 315 N.E.2d 755
EMPIRE CITY SUBWAY COMPANY (LIMITED), Respondent
v.
GREATER NEW YORK MUTUAL INSURANCE COMPANY, Appellant, et
al., Defendants.
Court of Appeals of New York.
July 10, 1974.

[35 N.Y.2d 9]

Page 692

William F. McNulty, Harold M. Foster and Anthony J. McNulty, New York City, for appellant.

[35 N.Y.2d 10] George E. Ashley and Martin J. Murtagh, New York City, for respondent.

JASEN, Judge.

In this declaratory judgment action, we are asked to decide whether an insured, under a liability insurance policy, complied [315 N.E.2d 756] with the terms of the policy requiring notice to the insurer 'as soon as practicable' after an accident and notice of claim or suit 'immediately' upon claim or suit being made.

The plaintiff, Empire City Subway Company (Empire), a construction subsidiary of New York Telephone Co., was named an insured under a policy of liability insurance issued by the defendant, Greater New York Mutual Insurance Company (Greater New York), covering legal liability imposed upon it for negligence on the part of Delee General Construction Corporation (Delee), one of its contractors, in the performance of [35 N.Y.2d 11] a highway excavation, backfilling and pavement replacement contract between the parties.

On October 21, 1968, several months after the work was completed, 1 one Joseph Vitaliano allegedly sustained personal injuries when he stumbled and fell while crossing a public highway in the City of New York, in one of the areas where Delee had previously performed excavation, backfilling and pavement replacement work for Empire pursuant to the terms of the contract between the parties and pursuant to highway opening permits issued by the City of New York to Empire. Thereafter Vitaliano brought suit against the City of New York to recover damages for his injuries.

On June 29, 1970, the City of New York served a third-party complaint on Empire for indemnification based on the latter's negligence in not causing the work performed, pursuant to the highway opening permits it has previously issued to Empire, to be properly done. Subsequently, on July 10, 1970, Vitaliano served an amended summons and complaint on Empire, making the latter an additional defendant in his action against the city.

After an examination before trial of Vitaliano, Empire notified Greater New York, on October 29, 1971, of the pendency of the action. Greater New York disclaimed liability under the policy it had issued to...

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