Incorporated Village of Pleasantville v. Calvert Ins. Co.

• Decision Date: 31 May 1994
• Citation: 612 N.Y.S.2d 441,204 A.D.2d 689
• Parties: INCORPORATED VILLAGE OF PLEASANTVILLE, Respondent-Appellant, v. CALVERT INSURANCE COMPANY, Appellant-Respondent, Dayton, Corey & Dubben, Inc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 441

612 N.Y.S.2d 441

204 A.D.2d 689

INCORPORATED VILLAGE OF PLEASANTVILLE, Respondent-Appellant, v. CALVERT INSURANCE COMPANY, Appellant-Respondent Dayton, Corey & Dubben, Inc., Respondent.

Supreme Court, Appellate Division Second Department.

May 31, 1994.

Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, New York City (Haydn J. Brill, Michele Sullivan, and Warren Nitti, of counsel), for appellant-respondent.

Burns, Handler & Burns, New York City, for respondent-appellant.

Lustig & Brown, Buffalo (R. Scott Atwater, of counsel), for respondent.

Before LAWRENCE, J.P., and RITTER, HART and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for a declaratory judgment, the defendant Calvert Insurance Company appeals from so much of an order of the Supreme Court, Westchester County (Burrows, J.), entered April 8, 1992, as denied its motion for summary judgment, and the plaintiff cross-appeals from so much of the same order as denied its cross motion for summary judgment.

ORDERED that the order is affirmed, without costs or disbursements.

While it is well established in this State that an insurance broker is the agent of the insured and "notice to the ordinary insurance broker is not notice to the liability carrier" (see, Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 442 n. 3, 340 N.Y.S.2d 902, 293 N.E.2d 76; Kamyr, Inc. v. St. Paul Surplus Lines Ins. Co., 152 A.D.2d 62, 65, 547 N.Y.S.2d 964), a broker will be held to have acted as the insurer's agent where "[t]here [is some] evidence of * * * action on the insurer's part, or facts from which a general authority to represent the insurer may be inferred" (Kamyr, Inc. v. St. Paul Surplus Lines Ins. Co., supra, quoting Matco Prods. v. Boston Old Colony Ins. Co., 104 A.D.2d 793, 796, 480 N.Y.S.2d 134; see also, Transamerica Interway, Inc. v. Commercial Union Assur. Co., 97 F.R.D. 419, 422; Ford v. Unity Hospital, 32 N.Y.2d 464, 473, 346 N.Y.S.2d 238, 299 N.E.2d 659; Jet Setting Service Corp. v. Toomey, 91 A.D.2d 431, 459 N.Y.S.2d 751; D.C.G. Trucking Corp. v. Zurich Ins. Co., 81 A.D.2d 990, 991, 440 N.Y.S.2d 74; Price v. Lawrence-Van Voast, Inc., 58 A.D.2d 727, 396 N.Y.S.2d 296; Insurance Law § 3420[a][3]. The Supreme Court properly determined that the issue of whether the appellant, Calvert Insurance Company (hereinafter Calvert) held out the defendant Dayton, Corey & Dubben, Inc., as its apparent agent precluded the granting of summary judgment (see, Kamyr, Inc. v. St. Paul Surplus Lines Ins. Co., 152 A.D.2d at 65, 547 N.Y.S.2d 964, supra; Jet Setting Service Corp. v. Toomey, 91 A.D.2d 431, 459 N.Y.S.2d 751, supra; Price v. Lawrence-Van Voast, Inc., 58 A.D.2d 727, 396 N.Y.S.2d 296).

In addition, in light of the evidence that Calvert did not investigate the claim between the time it received notice in April 1986 and the time of its disclaimer in December 1986, and in light of Calvert's July 7, 1986, letter to another insurer regarding its willingness to discuss the sharing of defense costs, the Supreme Court properly determined that Calvert's eight-month delay in disclaiming based upon the plaintiff's late notice of claim was unreasonable as a matter of law (see, Kamyr, Inc. v....