insurer defense in New York

2024An insurer's "denial or disclaimer of coverage [is] not untimely, since a disclaimer is unnecessary where, as here, the claim falls outside of the coverage terms rather than being subject to a policy exclusion" ( Certain Underwiters at Lloyd's London v Covert Holdings, LLC, 218 AD3d 729, 730 [2nd Dept. 2023])(No duty to defend or indemnify where evidence later disclosed that the location of the incident was not part of insured area of coverage and insurer had provided a reservation of its rights).

2024An insurer's "denial or disclaimer of coverage [is] not untimely, since a disclaimer is unnecessary where, as here, the claim falls outside of the coverage terms rather than being subject to a policy exclusion" ( Certain Underwiters at Lloyd's London v Covert Holdings, LLC, 218 AD3d 729, 730 [2nd Dept. 2023])(No duty to defend or indemnify where evidence later disclosed that the location of the incident was not part of insured area of coverage and insurer had provided a reservation of its rights).

2011Co. v City Club Hotel, LLC, 3 NY3d 592, 598 [2004] [holding that “an insured who prevails in an action brought by an insurance company seeking a declaratory judgment that it has no duty to defend or indemnify the insured may recover attorneys’ fees regardless of whether the insurer provided a defense to the insured”]; Integon Natl.

2011Co. v City Club Hotel, LLC, 3 NY3d 592, 598 [2004] [holding that “an insured who prevails in an action brought by an insurance company seeking a declaratory judgment that it has no duty to defend or indemnify the insured may recover attorneys’ fees regardless of whether the insurer provided a defense to the insured”]; Integon Natl.

2012Co. v Smiedala, 77 AD3d at 1295 , quoting U.S. Underwriters Ins.

2012Co. v Smiedala, 77 AD3d 1293, 1295 [2010], quoting U.S. Underwriters Ins.

2009Consistent both with the settled principle that the duty to defend is broader than the duty to indemnify and with the obligation of an insurer to provide a defense whenever there is “a reasonable possibility of coverage” (Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 67 [1991]), even when some of the claims asserted against its insured “fall outside the policy’s general coverage or within its exclusory provisions” (BP A.C.

2005Further, it is well established that an insurer must provide a defense where, as here, “it has actual knowledge of facts establishing a reasonable possibility of coverage” (Fitzpatrick, 78 NY2d at 67 ).

2021Co. v GTJ Co., Inc. , 139 AD3d 604, 604 [1st Dept 2016]).

2021Co. v GTJ Co., Inc. , 139 AD3d 604, 604 [1st Dept 2016]).

2019Although it is true that the legislature amended § 2601(a)(6) in 2009 “to permit individuals suing an insured tortfeasor to initiate a simultaneous declaratory judgment action against the tortfeasor’s insurer to challenge the denial of coverage based on late notice” (majority op at 12), the fact remains that a court “should construe unambiguous language to give effect to its plain meaning (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]), and “subsection (d)” unambiguously means “subsection (d).” Even assuming “subsection (d)” was ambiguous such that we would look to legislat

2019Although it is true that the legislature amended § 2601(a)(6) in 2009 “to permit individuals suing an insured tortfeasor to initiate a simultaneous declaratory judgment action against the tortfeasor’s insurer to challenge the denial of coverage based on late notice” (majority op at 12), the fact remains that a court “should construe unambiguous language to give effect to its plain meaning (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]), and “subsection (d)” unambiguously means “subsection (d).” Even assuming “subsection (d)” was ambiguous such that we would look to legislat

2017However, “[t]he failure of an insured to timely notify the insurer of a claim does not excuse the insurer’s failure to timely disclaim coverage” (Delphi Restoration Corp. v Sunshine Restoration Corp., 43 AD3d 851, 852 [2007]; see Atlantic Cas.

2011Indeed, “[t]he failure of an insured to timely notify the insurer of a claim does not excuse the insurer’s failure to timely disclaim coverage” (Delphi Restoration Corp. v Sunshine Restoration Corp., 43 AD3d 851, 852 [2007]).

2013Co. v J & S United Amusement Corp., 67 NY2d 1044, 1046 [1986]).

2013Co. v J & S United Amusement Corp., 67 NY2d 1044, 1046 [1986]).

2012Co. of N.Y. v Lin Hsin Long Co., 50 AD3d 305, 308 [1st Dept 2008]; Ringel v Blue Ridge Ins.

2012Co. of N.Y. v Lin Hsin Long Co., 50 AD3d 305, 308 [1st Dept 2008]; Ringel v Blue Ridge Ins.

2001Co. v Zablozki, 257 AD2d 506, 507 [1st Dept], lv denied 93 NY2d 809 [1999].) A hearing on the merits is, therefore, basically unavailable to the insurer once the “thirty day rule” is breached.

1999Co. v Zablozki, 257 AD2d 506 ).

2016Accordingly, because the challenged statutes extinguished, albeit on a temporary basis, the property right created by Insurance Law former § 332 before it vested, plaintiffs’ takings claims fail as a matter of law (see Matter of Novara v Cantor Fitzgerald, LP, 20 AD3d 103, 108 [2005], lv denied 5 NY3d 710 [2005]; see generally Matter of Gazza v New York State Dept. of Envtl.

2011Co., 26 AD3d 264, 264 [2006]).

2006Co., 99 NY2d 391, 393 [2003] [internal quotation marks omitted]).

2005City of New York v Britestarr Homes, Inc., 150 Misc 2d 820, 826 [1991] [“there is nothing which invalidates a policy issued by an insurer in violation of the Insurance Law”]; Certain Underwriters at Lloyd’s, London, supra [initial failure to satisfy notice requirements of New York’s regulatory scheme did not invalidate policy, but may subject broker to statutory penalties]).

2001Co., 186 Misc 2d 287 [Nassau Dist Ct 2000]; accord, Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18 [2d Dept 1999] [“It is clear from the text of Central General that an insurer may not claim * * * that the treatment rendered was * * * unnecessary”]; Country-Wide Ins.

1996Co. v Rapid-American Corp., 80 NY2d 640, 648), unless a court directs otherwise (see, Colon v Aetna Life & Cas.