Long Island Lighting Co. v. Allianz Underwriters Ins. Co.

• Decision Date: 26 March 2013
• Citation: 104 A.D.3d 581,2013 N.Y. Slip Op. 02009,961 N.Y.S.2d 419
• Parties: LONG ISLAND LIGHTING COMPANY, Plaintiff, KeySpan Corporation, Plaintiff–Appellant–Respondent, v. ALLIANZ UNDERWRITERS INSURANCE COMPANY, et al., Defendants, American Re–Insurance Company, et al., Defendants–Respondents–Appellants, Northern Assurance Company of America, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 581

961 N.Y.S.2d 419

2013 N.Y. Slip Op. 02009

LONG ISLAND LIGHTING COMPANY, Plaintiff,KeySpan Corporation, Plaintiff–Appellant–Respondent,

v. ALLIANZ UNDERWRITERS INSURANCE COMPANY, et al., Defendants,American Re–Insurance Company, et al., Defendants–Respondents–Appellants,Northern Assurance Company of America, Defendant–Respondent.

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

March 26, 2013.

Covington & Burlington LLP, New York (Jay T. Smith of counsel), for appellant-respondent.

Landman Corsi Ballaine & Ford, P.C., New York (Michael L. Gioia of counsel), for American Re–Insurance Company, respondent-appellant/respondent.

Boutin and Altieri, P.L.L.C., Carmel (John L. Altieri of counsel), for Century Indemnity, respondent-appellant/respondent.

White and Williams LLP, New York (Robert F. Walsh of counsel), respondent.

GONZALEZ, P.J., SWEENY, RENWICK, MANZANET–DANIELS, ROMÁN JJ.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered February 2, 2012, which, insofar as appealed from as limited by the briefs, upon renewal, granted so much of defendants-respondents insurers' motions for summary judgment as sought a declaration that defendant-respondents have no duty to defend or indemnify plaintiffs regarding environmental damage claims on the Bay Shore manufactured gas plant site, due to plaintiffs' failure to provide timely notice under the respective policies, but denied the motions as to the Hempstead site, unanimously modified, on the law, to deny the motions as to the Bay Shore site, vacate the declaration, and otherwise affirmed, without costs.

The record evidence establishes, as a matter of law, that LILCO failed to satisfy its obligation under the subject policies to give notice upon the happening of an occurrence “reasonably likely” to reach the excess insurance policies involving environmental contamination at both the Bay Shore and Hempstead manufactured gas plant sites ( see Long Is. Light. Co. v. Allianz Underwriters Ins. Co., 24 A.D.3d 172, 805 N.Y.S.2d 74 [1st Dept. 2005], appeal dismissed6 N.Y.3d 844, 814 N.Y.S.2d 77, 847 N.E.2d 374 [2006] ).

However, summary judgment declaring that defendant insurers have no duty to defend or indemnify plaintiffs as a result of this late notice is premature because issues of fact remain as to whether defendants waived their right to disclaim coverage based on late notice. Defendant insurers' reservation of rights, which specifically reserved,...