Scharf v. Generali U.S. Branch

Order and judgment (one paper), Supreme Court, New York County (Herman Cahn, J.), entered March 6, 1998, which, upon facts submitted pursuant to CPLR 3222, declared that defendant insurer is obligated to defend and indemnify plaintiffs in the underlying personal injury action, unanimously affirmed, without costs. We agree with Supreme Court that plaintiff owners’ receipt of the Health Department’s Order to Abate Nuisance did not trigger their obligation under the subject insurance contract to notify defendant of a potential claim. The Order to Abate Nuisance did not apprise the owners that a particular infant tenant in their building had been injured by elevated lead levels in his apartment and thus did not place them on notice of “a concrete threat of litigation” (see, Public Serv. Mut. Ins. 350 Co. v AYFAS Realty Corp., 234 AD2d 226, lv dismissed 90 NY2d 844; see also, Mount Vernon Fire Ins. Co. v East Side Renaissance Assocs., 893 F Supp 242, 248-249; compare, Mount Vernon Fire Ins. Co. v Arec Bros. Corp., US Dist Ct, ED NY, Jan. 19, 1995, 91 Civ 708). Concur — Sullivan, J. P., Rosenberger, Tom and Lerner, JJ.