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Admiral Indemnity Co. v. Pancas Restaurant10/3/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
In motion sequence 001, plaintiff Admiral Indemnity Company ("Admiral") moves, pursuant to CPLR 3212, for summary judgment on its complaint in an underlying personal injury action. Defendants, Pancas Restaurant, Inc., ("Pancas") and Public Service Mutual Insurance Company ("PSM") cross move for summary judgment dismissing the complaint, also pursuant to 3212.
Defendant, Giovanni Ristaurante ("Giovanni") operates a restaurant located in a building at 47-49 West 55th Street in New York, New York. Giovanni leases the restaurant premises from the owner of the building, defendant Pancas.
Plaintiff Admiral issued a General Liability policy to Giovanni. Pursuant to an "Additional Insured Endorsement", the policy, as required by the terms of Giovanni's lease with building owner Pancas, names Pancas as an additional insured. The Admiral policy contains in its pertinent parts a "Conditions" section which requires that the insured notify "as soon as practicable of an occurrence which may result in a claim." The Conditions section further provides that when "[Admiral] insurance is excess, [they] will have no duty under Coverage [...] to defend the insured against any 'suit' if any other insurer has a duty to defend the insured against that 'suit'."
Pancas also procured its own separate liability policy from the defendant PSM. Pancas's PSM policy provides primary coverage to Pancas for, among other things, lawsuits arising out of bodily injury occurring within the subject premises.
On October 20, 2002, while both the Admiral and PSM liability policies were in effect, the defendant and underlying plaintiff, Oswalso Bendenzu, slipped and fell on a staircase within the above-described premises during the course of his employment as a dishwasher for Giovanni. He sustained injuries as a consequence of this accident.
In a December 2, 2002, letter from an attorney retained by Bendenzu, Bendenzu advised that he would be asserting a claim against Pancas to recover for injuries he had sustained in the course of his employment. This letter instructed Pancas to notify its liability insurer for the claim. Plaintiff claims that Pancas did not notify Admiral of Bendenzu's claim in December 2002.
On January 2, 2003, Bendenzu commenced an action against Pancas in the Supreme Court of Bronx County for which the Summons and Complaint were served on Pancas on January 23, 3003. Bendenzu alleged in his complaint that his injuries are the result of defective conditions of the premises due to Pancas's negligent maintenance and ownership of the premises. In February, 2003, Pancas tendered the action exclusively to its own liability insurer, defendant PSM. PSM thereafter assigned counsel to represent Pancas in the Bendenzu lawsuit without reservation of rights.
In July, 2003, Admiral claims they were placed on notice of the Bendenzu lawsuit. Admiral acknowledged the action in a letter dated August 11, 2003. Admiral states that it commenced its investigation thereafter into the matter.
On September 15, 2003 the Bendenzu Summons and Complaint were furnished to Admiral. Admiral disclaimed coverage in a letter to Pancas dated November 4, 2003, on the basis of its violation of the Admiral policy's Notice Conditions. In a letter dated May 17, 2004, Admiral rescinded its disclaimer and retained defense counsel to share in and partly assume control of Pancas's defense with PSM in the Bendenzu suit.
Admiral argues that it is not obligated to defe
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