Opinion
2002-09737.
December 1, 2003.
In an action, inter alia, for a judgment declaring that the defendant United International Insurance Company is obligated to defend and indemnify the defendant 1840 Pub, Inc., d/b/a Last Second Saloon, in an underlying personal injury action entitled Heegan v. 1840 Pub, pending in the Supreme Court, Kings County, under Index No. 30940/97, the defendant United International Insurance Company appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Belen, J.), dated September 10, 2002, which, in effect, denied its motion for summary judgment, and, upon searching the record, granted summary judgment to the plaintiff and declared that it is obligated to defend and indemnify the defendant 1840 Pub, Inc., d/b/a Last Second Saloon, in the underlying personal injury action, and granted the cross motion of the defendant John Paterno, Inc., for summary judgment.
Bivona Cohen, P.C., New York, N.Y. (Michael C. Modansky of counsel), for appellant.
O'Brien, McLaughlin Kenny, Lynbrook, N.Y. (Robert P. O'Brien of counsel), for plaintiff-respondent.
Sullivan Marshall, New York, N.Y. (James R. Sullivan of counsel), for defendant-respondent John Paterno, Inc.
Before: NANCY E. SMITH, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the appeal from so much of the order and judgment as granted the cross motion is dismissed, as the appellant is not aggrieved by that portion of the order ( see CPLR 5511); and it is further,
ORDERED that the order and judgment is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.
The Supreme Court properly searched the record and granted summary judgment to the plaintiff ( see CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557; Vanegas v. Nationwide Mut. Fire Ins. Co., 282 A.D.2d 671).
Insurance Law § 3420(d) requires that an insurer "give written notice as soon as is reasonably possible" of a denial of coverage. In this case, the lateness of the notice of occurrence given by the defendant 1840 Pub, Inc., d/b/a Last Second Saloon (hereinafter the insured), to the defendant United International Insurance Company (hereinafter the insurer), which was the asserted reason for the denial of coverage, was evident on the face of the complaint in the underlying action ( see Wasserheit v. New York Cent. Mut. Fire Ins. Co., 271 A.D.2d 439; Matter of Nationwide Mut. Ins. Co. v. Steiner, 199 A.D.2d 507). To the extent that an investigation was necessary to determine if the insured had a reasonable excuse for its tardiness, the insurer provided no explanation for its own delay in promptly commencing such an investigation ( see Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028, 1030; cf. Generali-U.S. Branch v. Rothschild, 295 A.D.2d 236; Farmbrew Realty Corp. v. Tower Ins. Co. of N.Y., 289 A.D.2d 284; 2540 Assocs. v. Assicurazioni Generali, 271 A.D.2d 282; see also First Fin. Ins. Co. v. Jetco Contr. Corp., 2003 WL 22725397, N.Y.2d [Nov. 20, 2003]). Accordingly, the insurer must defend and indemnify the insured in the underlying personal injury action.
The insurer's remaining contentions are without merit.
RITTER, J.P., FLORIO, SMITH and H. MILLER, JJ., concur.