Washington v. St. Paul Surplus Lines Ins. Co.

• Decision Date: 18 January 1994
• Citation: 200 A.D.2d 617,606 N.Y.S.2d 726
• Parties: John WASHINGTON, et al., Respondents, v. ST. PAUL SURPLUS LINES INSURANCE CO., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 726

606 N.Y.S.2d 726

200 A.D.2d 617

John WASHINGTON, et al., Respondents, v. ST. PAUL SURPLUS LINES INSURANCE CO., Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 18, 1994.

Kopff, Nardelli & Dopf, New York City (Martin B. Adams, on the brief), for appellant.

Mendelson & Mendelson, Brooklyn (Cindy J. Mendelson, on the brief), for respondents.

Before MANGANO, P.J., and O'BRIEN, PIZZUTO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action to recover the proceeds of an insurance policy, the defendant insurer appeals from an order of the Supreme Court, Kings County (Garry, J.), dated July 29, 1991, which granted the plaintiffs' motion to strike the affirmative defenses of failure to timely notify the insurer of a negligence action against its insured, and of a subsequent default judgment entered in that action, and denied its cross motion for summary judgment.

ORDERED that the order is modified, on the law, by deleting the provision thereof which granted that branch of the plaintiffs' motion which was to strike the fifth affirmative defense, and substituting therefor a provision denying that branch of the motion; as so modified the order is affirmed, without costs or disbursements.

The appellant acknowledged that it was notified of the incident which occurred on January 16, 1981. In that incident, the plaintiff John Washington was shot and seriously injured by an intoxicated patron of a bar and grill insured by the appellant. The plaintiffs made a claim against the appellant's insured, and in December 1981 the appellant disclaimed liability, asserting that John Washington's injuries fell under an exclusion in the policy for injuries resulting from "assault and battery". In December 1982 the plaintiffs commenced the underlying action against the insured, sounding in negligence. Two months after the commencement of the action, the plaintiffs allegedly sent a letter and a copy of the summons and complaint to the appellant, notifying it of the lawsuit. In 1988, a default judgment was entered against the insured, awarding the plaintiffs $229,947. The plaintiffs served a copy of this judgment on the appellant, and demanded payment.

In the instant action against the appellant to recover the proceeds of the insurance policy, the appellant asserted affirmative defenses, alleging, inter alia, that it received no notification of the underlying action and the judgment. The plaintiffs moved to strike those affirmative defenses,...