The Tower Insurance Company of New York is the plaintiffs in this case. Rose Ventures, LLC and Tremayne Lampktn and Wendalyn Lampktn are the defendants of the case. The Supreme Court of the State of New York in New York County is presiding over this case.
This is an action for declaratory judgment. The plaintiff seeks a declaration stating that it does not have the obligation to defend or indemnify the defendant Rose Ventures LLC in a trip and fall action against the company taking place in the Queens County Supreme Court and another trip and fall action taking place in Kings County Supreme Court. The plaintiff states that the motion for summary judgment should be granted because they were not notified of the accident in a timely fashion, which is a violation of the insurance policy.
Rose opposes the motion made by the plaintiff on the ground that the disclaimer was premature and not valid against its co-defendants. The defendant Rose further argues that the motion should be denied because there is reasonable belief of non liability in the cases against them. The defendant further maintains that there has been no prejudice that has risen from the notice being served late. It is also noted that the duty to defend is broader than the duty to indemnify and the plaintiff should not abandon the defense of Rose in the litigation against them.
Case Discussion and Decision
The policy that is provided by the plaintiff, Tower requires that a written notice of an occurrence or offense that may result in a claim be provided to the company as soon as practicable. The Queens lawsuit in question was commenced in November of 2005 and the other lawsuit in Kings County was commenced in November of 2006.
Tower did not receive notice of the first accidentuntil December of 2005. A disclaimer was issued by Tower based on the late notice of the claim. Tower maintains that Rose knew of the accident in the late part of May or early part of June in 2004 based on a letter issued in may of 2004 from a law firm that is representing the plaintiffs in the case. The letter stated that a lawsuit might take place in the future. Rose ignored this letter. A second letter was sent on the 14th of July, 2004.
These letters from the first case offer significant proof that the defendants failed to notify the plaintiffs of the pending case in a timely fashion. Rose did not offer any reason for not responding to the letters requesting more information about the accident.
For these reasons the court rules in favor of the plaintiff. A summary judgment in the case is declared in favor of the plaintiff and it is declared that the plaintiff does not have a legal obligation to defend or indemnify the defendant in a trip and fall action in Queens County or the trip and fall action in Kings County Supreme Court.
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