Cnty. of Suffolk v. U.S. Liab. Ins. Co.

192 A.D.3d 755

139 N.Y.S.3d 872 (Mem)

COUNTY OF SUFFOLK, et al., appellants,

v.UNITED STATES LIABILITY INSURANCE COMPANY, et al., respondents.

2018–09382

Index No. 601268/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 4, 2021

March 10, 2021

Dennis M. Cohen, County Attorney, Hauppauge, N.Y. (Susan A. Flynn of counsel), for appellants.

Miranda Slone Sklarin Verveniotis LLP, Elmsford, N.Y. (Richard S. Sklarin of counsel), for respondents United States Liability Insurance Company and Circle of Chiefs, doing business as Friends of Bradstock.

MARK C. DILLON, J.P., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action for declaratory relief, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County (Joseph Pastoressa, J.), dated June 20, 2018. The order and judgment granted the motion of the defendants United States Liability Insurance Company and Circle of Chiefs, doing business as Friends of Bradstock, for summary judgment declaring that the defendant United States Liability Insurance Company is not obligated to defend or indemnify the plaintiffs in an underlying action entitled Creutzberger v. County of Suffolk, 2014 WL 1355095, commenced in the Supreme Court, Suffolk County, under Index No. 39984/08, and declared that the defendant United States Liability Insurance Company is not obligated to defend or indemnify the plaintiffs in the underlying action.

ORDERED that the order and judgment is affirmed, with costs.

During the evening of September 2, 2007, John Creutzberger attended a music festival sponsored by the defendant Circle of Chiefs, doing business as Friends of Bradstock (hereinafter Circle of Chiefs), which was held on property owned by the plaintiff County of Suffolk and occupied by the plaintiff Long Island Maritime Museum (hereinafter the Museum). During the festival, Creutzberger allegedly was injured while riding his bicycle on the grounds. Circle of Chiefs was insured by the defendant United States Liability Insurance Company (hereinafter USLIC) under a liability insurance policy, and the County and the Museum were named as additional insureds under the policy. The insurance policy required, inter alia, that USLIC be notified "as soon as practicable of an ‘occurrence’ or an offense which may result in a claim."

In September 2007, Circle of Chiefs provided notice to USLIC of a "potential claim" against it based upon the subject accident. The notice did not mention the County or the Museum. In January 2008, USLIC was notified of the identity of the allegedly injured party, and commenced an investigation of the incident. In February 2008, USLIC learned of a 90–day notice filed with the County, and a potential General Municipal Law § 50–h hearing "in the near future." On April 3, 2008, USLIC obtained for the first time a copy of a notice of claim dated September 19, 2007, filed against the County, among others. On April 4, 2008, USLIC issued a letter disclaiming coverage to the County and the Museum on the ground that it had not received notice from the County and the Museum of the claims asserted against them.

In October 2008, Creutzberger commenced an action against the County and the Museum, among others, to recover damages for personal injuries (hereinafter the underlying action). In November 2016, the County and the Museum (hereinafter...