Bovis Lend Lease LMB, Inc. v. Royal Surplus Lines Insurance

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered June 1, 2006, which, to the extent appealed from, granted the motion of third-party plaintiff Millennium Masonry, Inc. (Millennium) for summary judgment on its third cause of action against defendant/third party defendant Royal Surplus Lines Insurance Company (Royal) declaring that Royal is obligated to defend and indemnify Millennium in the underlying personal injury action and to reimburse Millennium for its defense costs, and order, same court and Justice, entered November 30, 2006, which denied Royal’s motion for leave to renew, unanimously affirmed, with costs. The court properly determined that the 37-day delay between Royal’s receipt of the report from its investigator detailing the accident involving Millennium’s employee and its letter disclaiming coverage was unreasonable as a matter of law (Insurance Law § 3420 [d]). The reasons for Royal’s disclaimer were readily apparent from the documents delivered to Royal, including the notice of claim and the investigation report (see 2833 Third Ave. Realty Assoc. v Marcus, 12 AD3d 329 [2004]; West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278 [2002], lv denied 98 NY2d 605 [2002]). The court also properly denied Royal’s motion for leave to renew. The report from Royal’s investigator does not constitute new evidence that would change the prior determination (CPLR 2221 [e] [2]), and Royal’s explanation that it did not initially submit the report because it believed it was not discoverable, was not reasonable (CPLR 2221 [e] [3]; see Roman Catholic Church of Good Shepherd v Tempco Sys., 202 AD2d 257 [1994]). Concur—Lippman, P.J., Tom, Nardelli, Gonzalez and Kavanagh, JJ.