United States Fire Insurance v. Leisure Rinks Southtown, Inc.

Order, insofar as appealed from, unanimously modified on the law and as modified affirmed with costs, in accordance with the following memorandum: In this declaratory judgment action, we agree with the court’s conclusion that plaintiff’s disclaimer of coverage was untimely as a matter of law (Insurance Law § 3420 [d]; Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029, rearg denied 47 NY2d 951; New York Cent. Mut. Fire Ins. Co. v Markowitz, 147 AD2d 461, 462; Cassara v Nationwide Mut. Ins. Co., 144 AD2d 974; Progressive Cas. Ins. Co. v Conklin, 123 AD2d 6, 8-9; Hartford Ace. & Indem. Co. v J. J. Wicks, Inc., 104 AD2d 289, 293, appeal dismissed 65 NY2d 691; Zook v Hartford Acc. & Indem. Co., 64 AD2d 701, 702). We nonetheless modify in order to declare the rights of the parties (Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). Plaintiff is obligated to defend and indemnify defendant Leisure Rinks in the underlying action. (Appeal from order of Supreme Court, Erie County, Flaherty, J. — summary judgment.) Present — Denman, J. P., Pine, Lawton, Davis and Lowery, JJ.