Opinion
2012-01-31
BAUERSCHMIDT & SONS, INC., respondent, v. NOVA CASUALTY COMPANY, appellant.
Melito & Adolfsen, P.C., New York, N.Y. (Ignatius John Melito of counsel), for appellant. Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Robert N. Zausmer of counsel), for respondent.
Melito & Adolfsen, P.C., New York, N.Y. (Ignatius John Melito of counsel), for appellant. Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Robert N. Zausmer of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying action entitled Fiore v. Bauerschmidt & Sons, Inc., pending in Supreme Court, Kings County, under Index No. 3509/09, the defendant appeals from a judgment of the Supreme Court, Queens County (Kitzes, J.), entered March 9, 2011, which, after a nonjury trial, is in favor of the plaintiff and against it declaring that it must defend and indemnify the plaintiff in the underlying action.
ORDERED that the judgment is affirmed, with costs.
On an appeal from a judgment entered after a nonjury trial, the power of this Court “ ‘to review the evidence is as broad as that of the trial court, bearing in mind ... that due regard must be given to the decision of the Trial Judge who was in a position to assess the evidence and the credibility of the witnesses' ” ( Tornheim v. Kohn, 31 A.D.3d 748, 748, 818 N.Y.S.2d 491, quoting Universal Leasing Servs. v. Flushing Hae Kwan Rest., 169 A.D.2d 829, 830, 565 N.Y.S.2d 199; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809; Huner v. State of New York, 90 A.D.3d 992, 934 N.Y.S.2d 828; A. Montilli Plumbing & Heating Corp. v. Valentino, 90 A.D.3d 961, 935 N.Y.S.2d 647). Applying this standard here, the record supports the Supreme Court's determination that the plaintiff's delay in notifying the defendant of the underlying incident was reasonably based on a good faith belief of nonliability ( see Tri–State Consumer Ins. Co. v. Yaskin, 304 A.D.2d 560, 561, 756 N.Y.S.2d 906; Eveready Ins. Co. v. Robinson, 300 A.D.2d 436, 437, 751 N.Y.S.2d 419; Abbey Richmond Ambulance Serv. v. Northbrook Prop. & Cas. Ins. Co., 281 A.D.2d 501, 501–502, 721 N.Y.S.2d 796). We decline to disturb the Supreme Court's determination.
The defendant's remaining contentions are without merit.