Homeland Ins. Co. of N.Y. v. Nat'l Grange Mut. Ins. Co.

• Decision Date: 03 May 2011
• Citation: 922 N.Y.S.2d 522,84 A.D.3d 737,2011 N.Y. Slip Op. 03805
• Parties: HOMELAND INSURANCE COMPANY OF NEW YORK, etc., respondent,v.NATIONAL GRANGE MUTUAL INSURANCE COMPANY, appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 737

922 N.Y.S.2d 522

2011 N.Y. Slip Op. 03805

HOMELAND INSURANCE COMPANY OF NEW YORK, etc., respondent,

v.NATIONAL GRANGE MUTUAL INSURANCE COMPANY, appellant.

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

May 3, 2011.

Costello, Cooney & Fearon, PLLC, Syracuse, N.Y. (Christina F. DeJoseph and James Gascon of counsel), for appellant.Curtis, Vasile, P.C., Merrick, N.Y. (Patricia M. D'Antone of counsel), for respondent.MARK C. DILLON, J.P., JOSEPH COVELLO, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ.

In an action for a judgment declaring that the defendant is obligated to pay a proportionate share of the defense and settlement costs incurred by the plaintiff in an underlying action entitled Coon v. Olde Post Mall Apartments, pending in the Supreme Court, Dutchess County, under Index No. 234/04, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Costello, J.), entered January 12, 2010, as denied, as untimely, its cross motion for summary judgment.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, the defendant's cross motion for summary judgment is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that the defendant is not obligated to pay a proportionate share of the defense and settlement costs incurred by the plaintiff in the underlying action.

The owner of an apartment complex, Olde Post Mall Apartments (hereinafter Olde Post), entered into a contract with Asset Property Services, Inc. (hereinafter Asset Property), to manage the apartment complex. Pursuant to the contract, Olde Post agreed to indemnify Asset Property against personal injury claims in connection with the property unless the injury was caused by Asset Property's negligence, in which case Asset Property would indemnify Olde Post. Olde Post was also required to carry liability insurance and include Asset Property as an insured under its policy. Olde Post obtained a liability insurance policy from the plaintiff Homeland Insurance Company of New York (hereinafter Homeland), which provides that Asset Property, as a real estate manager, is an insured under the policy. Asset Property obtained its own liability insurance policy from the defendant National Grange Mutual Insurance Company (hereinafter National Grange).

In August 2004 Vernon Coon commenced a personal injury action against Olde Post and Asset Property alleging that he sustained injuries when he slipped and fell on a wooden ramp while delivering an appliance at the apartment complex. Homeland assigned counsel to represent both Olde Post and Asset Property as its insureds under its policy. National Grange, notified by Asset Property of the claim, communicated with Homeland and assigned counsel, and was assured that Homeland's policy was primary and National Grange's policy was excess. In April 2005, near the completion of discovery in the underlying action, Homeland determined that National Grange was a primary co-insurer of Asset Property and requested National Grange to contribute to the defense and potential settlement on behalf of Asset Property. National Grange refused to contribute as a primary insurer. Homeland then settled the underlying action on behalf of both Olde Post and Asset Property to the limits of its policy and commenced this action seeking a declaration that National Grange is obligated to pay one half of the defense and settlement costs made on behalf of Asset Property. Homeland moved for summary judgment, and National Grange cross-moved for summary judgment. The Supreme Court denied the motion, concluding that Homeland failed to establish its prima facie entitlement to judgment as a matter of law, and denied the cross motion as untimely.

The Supreme Court improvidently exercised its discretion in denying, as untimely, National Grange's cross motion for summary judgment. While the cross motion was made more than 120 days after the note of issue was filed and, therefore, was untimely ( see Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431), “an untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds” ( Grande v. Peteroy, 39 A.D.3d 590, 591–592, 833 N.Y.S.2d 615; see Whitehead v. City of New York, 79 A.D.3d 858, 860, 913 N.Y.S.2d 697; Lennard v. Khan, 69 A.D.3d 812, 814, 893 N.Y.S.2d 572; Bressingham v. Jamaica Hosp. Med. Ctr., 17 A.D.3d 496, 497, 793 N.Y.S.2d 176). In such circumstances, the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause ( see CPLR 3212[a] ) to review the merits of the untimely cross motion ( see Grande v. Peteroy, 39 A.D.3d at 592, 833 N.Y.S.2d 615). No...