City of New York v Investors Ins. Co. of Am., 2011 NY Slip Op 07910 [89 AD3d 489]

November 10, 2011

Appellate Division, First Department

— [*1]

Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for appellant.

Lester Schwab Katz & Dwyer, LLP, New York (Aaron Brouk of counsel), for respondent.

Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered May 26, 2010, dismissing the complaint, unanimously modified, on the law, to strike the decretal paragraph dismissing the complaint and to substitute therefor a declaration that defendant has no duty to defend or indemnify plaintiff in the underlying action, and, as so modified, affirmed, without costs. Appeal from orders, same court and Justice, entered April 19, 2010, which denied plaintiff’s motion for summary judgment and granted defendant’s motion for summary judgment, dismissed without costs, as subsumed in the appeal from the aforesaid judgment.

As an additional insured under the policy issued by defendant, plaintiff had, in the absence of an express duty, an implied duty, independent of the named insured’s obligation, to provide defendant with timely notice of the occurrence for which it seeks coverage ( see Structure Tone v Burgess Steel Prods. Corp. , 249 AD2d 144 [1998]; Thomson v Power Auth. of State of N.Y. , 217 AD2d 495, 497 [1995]). The notice it served 13 months after receiving the underlying plaintiff’s notice of claim was untimely as a matter of law ( see 1700 Broadway Co. v Greater N.Y. Mut. Ins. Co. , 54 AD3d 593 , 593 [2008]).

Nor may plaintiff rely upon the named insured’s timely notice of the underlying action to satisfy its duty to provide timely notice of the occurrence , since the duty under the policy to notify of an occurrence is distinct from the duty to notify of any claim or suit brought thereon ( see American Tr. Ins. Co. v Sartor , 3 NY3d 71 , 75 [2004]; Steadfast Ins. Co. v Sentinel Real Estate Corp. , 283 AD2d 44, 54 [2001]). Moreover, plaintiff’s obligation to provide timely notice was independent of the named insured’s obligation because its interests were adverse to those of [*2] the named insured “from the moment the [amended] complaint was served naming them both as defendants” ( 1700 Broadway Co. , 54 AD3d at 594; City of New York v Welsbach Elec. Corp. , 49 AD3d 322 , 322 [2008]). Concur—Tom, J.P., Andrias, Acosta, Freedman and Richter, JJ. [Prior Case History: 2010 NY Slip Op 30901(U).].