Unpaid Premiums. First Department affirms summary judgment in favor of State Fund in action to recover unpaid premiums. Court finds evidence of policy, application, audits, and statements constituted prima facie entitled to judgment. Court rejects insured’s various evidentiary arguments. The Commissioners of the State Insurance Fund v. Concord Messenger Service, Inc., 2006 WL 3365467 (1st Dept. November 21, 2006).
Contractual Indemnification. In Labor Law case, Second Department reverses summary judgment granting contractual indemnification. Court finds that it was error to grant motion since the underlying negligence causes of action against the putative indemnitor were dismissed. Moss v. McDonald’s Corp., 2006 WL 3378321 (2d Dept. November 21, 2006).
Insurance Law § 2601. Fourth Department affirms dismissal of cause of action premised on a regulation promulgated under Insurance Law § 2601 since the statute does not give rise to a private cause of action. Litvinov v. Hodson, 2006 WL 3335457 (4th Dept. November 17, 2006).
First-Party No-Fault. Court reverses denial of summary judgment in favor of insurer and grants judgment in favor of provider. Court finds insurer precluded from defenses of lack of medical necessity because it failed to produce evidence of timely mailing of denial. Specifically, court observes that out-of-state affidavit of mailing did not comply with C.P.L.R. § 2309(c) requirement of a certificate of conformity. Bath Medical Supply, Inc. v. Allstate Indemnity Co., 2006 WL 3437481 (Sup. Ct. App. Term November 17, 2006).
First-Party No-Fault. Court affirms summary judgment in favor of provider. Provider established delivery of claim forms through insurer’s denial. Insurer was precluded from raising defenses of medical necessity and excessive fees because affidavit of mailing of denial lacked personal knowledge or sufficient description of standard office mailing procedures. AVA Acupuncture, P.C. v. New York Central Mutual Fire Ins. Co., 2006 WL 3437863 (Sup. Ct. App. Term November 15, 2006).
General Obligations Law. Second Department reverses grant of motion to dismiss claim for contractual indemnification by landlord against tenant in connection with a slip-and-fall. Court finds issue of fact regarding landlord’s negligence, and observes that indemnification provision is unenforceable under General Obligations Law § 5-321 because it requires indemnification for landlord’s own negligence. Wolfe v. Long Island Power Authority, 2006 WL 3306908 (2d Dept. November 14, 2006).
General Obligations Law. In an action for indemnification in connection with a personal injury action, third-party plaintiff brought an action for indemnification against a party that previously settled. Court denies third-party defendant’s motion to dismiss based on General Obligations Law § 15-108, and gives third-party plaintiff the “benefit of the doubt.” However, court orders hearing to determine whether third-party plaintiff has any plausible basis for an indemnification claim, as opposed to a barred contribution claim. Court warns that if purported indemnification claim proves frivolous, sanctions will result. Cabrera v. 2426 University Avenue Realty, LLC, 2006 WL 3350654 (Sup. Ct. Bronx Co., November 2, 2006).
First-Party No-Fault. Court finds provider’s motion for summary judgment properly denied where assignor’s failure to report for a duly noticed IME rebuts the presumption of medical necessity. Vega Chiropractic, P.C. v. Eveready Ins. Co., 2006 WL 3437899 and 2006 WL 3437902 (Sup. Ct. App. Term November 2, 2006).
First-Party No-Fault. Summary judgment in favor of provider properly denied where affidavit of insurer’s special investigator raised triable issue of fact regarding fraud, which defense is not precluded by insurer’s failure to deny claims. New Century Chiropractic, P.C. v. State Farm Mut. Ins. Co., (Sup. Ct. App. Term November 2, 2006).
Contractual Indemnification (Auto). Second Circuit affirms summary judgment in favor of insurer for indemnification against lessee of vehicle involved in an accident. Insurer paid the loss on behalf of its insured, the owner of the leased vehicle. Court holds that lessee is not an insured under the policy (and is therefore not shielded from an indemnification claim by the anti-subrogation rule) because the policy at issue is an excess policy with respect to the lessee by virtue of an “other insurance” provision. Court observes that the Vehicle and Traffic Law requirement that permissive users be insureds does not apply to excess coverage. Court also rejects insured’s claims of deceptive business practices and fraudulent inducement as baseless, and finds the owner’s insurer’s settlement to be reasonable. Tokio Marine & Fire Ins. Co. v. Rosner, 2006 WL 3407797 (2d Cir. November 22, 2006).
Employee/Contractual Liability Exclusions. Where insured was sued for contractual and common law indemnification in connection with a construction accident, court grants summary judgment upholding insurer’s disclaimer based on exclusions for injuries to employees and contractual liability. Court rejects argument that “insured contract” exception to contractual liability exclusion is ambiguous. Kelleran & Associates, Inc. v. Zurich Specialties London, Inc., 2006 WL 3437420 (E.D.N.Y. November 29, 2006).
Homeowners/Replacement Cost Provision. Third Department affirms trial court’s dismissal of insured’s complaint against insurer alleging equitable estoppel and breach of a homeowner’s policy. After paying actual cash value of the damage, insurer denied insured’s claim for certain repair costs on grounds that insured failed to submit receipts or other proof of actual repair. Court also holds that insurer was not estopped to deny replacement costs based on adjuster’s statement that insureds would receive remaining money when repairs were complete since insureds signed form that claim was to be filed in accordance with the policy. Bartholomew v. Sterling Ins. Co., 2006 WL 3436645 (3d Dept. November 30, 2006).
Insurance Law § 3420(d)/Additional Insureds/Employee Exclusion. First Department reverses trial court and grants motion to dismiss of the insurer of a subcontractor that employed the underlying plaintiff in a construction accident case. Court finds that § 3420(d) does not apply to a demand for defense and indemnification made by a co-insurer, in this case, the insurer of the general contractor. Court finds no prejudice caused to the general contractor’s insurer caused by the delay in disclaiming. Court also finds that general contractor not an additional insured under the blanket endorsement in the subcontractor/employer’s policy due to lack of an insurance procurement provision in the parties’ contract. Court also finds the policy’s employee exclusion would apply. Sixty Sutton Corp. v. Illinois Union Ins. Co., 2006 WL 3438354 (1st Dept. November 30, 2006).
Late Notice of Occurrence/Suit. First Department affirms trial court’s order granting insurer’s motion for summary judgment denying contractor’s claim that insurer’s late notice disclaimer was invalid where insurer showed that it was not notified of underlying construction site accident until eight months after the incident and three months after contractor was served. The Doe Fund, Inc. v. Royal Indemnity Co., 2006 WL 3438440 (1st Dept. November 30, 2006).
SUM / Insurance Law § 3420(d). Court grants insured’s motion for summary judgment declaring that insurer must provide SUM coverage on grounds that insurer’s denial of such benefits was untimely as a matter of law. Court finds that insurer that delayed notice of disclaimer to insured for 36 days owes duty to provide SUM coverage even where insured failed to provide notice that tortfeasor’s insurer had tendered its policy limits and failed to obtain insurer’s consent prior to settlement. Morath v. New York Central Mutual Fire Ins. Co., 2006 WL 3421254 (Sup. Ct. Ontario Co. November 28, 2006).
Homeowners/Rental Exclusion. Second Department affirms trial court’s order obligating insurer to defend and indemnify homeowner in underlying slip and fall injury action despite homeowner’s policy exclusion for injury arising out of rental of insured property. Court finds undefined term “roomer” in the exclusion ambiguous. Tower Ins. Co. of New York v. Corlette, 2006 WL 3437603 (2d Dept. November 28, 2006).
UM Arbitration. Second Department affirms trial court’s order directing a 90-day stay in arbitration and ordering the insured to provide pre-arbitration discovery where insurer issued three letters seeking disclosure that insured failed to answer. In the Matter of State Farm Mutual Automobile Ins. Co. v. Goldstein, 2006 WL 3438522 (2d Dept. November 28, 2006).
SUM Arbitration. Second Department affirms trial court’s order permanently staying arbitration where insured breached the policy’s SUM endorsement by failing to submit a notice of intention to make a claim form timely provided by the insurer. In the Matter of New York Central Mutual Fire Ins. Co. v. Gonzalez, 2006 WL 3438566 (2d Dept. November 28, 2006).
First-Party No-Fault. Second Department reverses trial court’s order granting provider’s motion for summary judgment. Court finds insurer’s timely request for additional verification did not have to be set forth in a prescribed form. Request tolled the insurer’s time to deny the claim. However, court finds issue of fact regarding whether policy was exhausted at the time claim was due. Montefiore Medical Center v. Government Employees Ins. Co., 2006 WL 3438704 (2d Dept. November 28, 2006).
Contractual Indemnification. In connection with a Labor Law case, First Department affirms trial court’s dismissal of building owner’s third-party complaint against escalator company, plaintiff’s employer. Indemnity provisions of the contract were intended to apply to patrons for injuries on elevator, and did not contain language manifesting an intent to indemnify for injuries to employees not occurring in the vicinity of the elevator. Kocis v. The Unification Church, 2006 WL 3365414 (1st Dept. November 21, 2006).
New York Insurance Coverage Law Digest 
