8910. LIBERTY INSURANCE UNDERWRITERS, INC., plf-ap, v. PERKINS EASTMAN ARCHITECTS, P.C., def-res — PERKINS EASTMAN ARCHITECTS, P.C., Third-Party plf-ap, v. ACE AMERICAN INSURANCE COMPANY, Third-Party def-res — Kissel Hirsch & Wilmer LLP, Tarrytown (Frederick J. Wilmer of counsel), for Liberty Insurance Underwriters, Inc., ap — CLIFTON BUDD & DEMARIA, LLP, NEW YORK (ROBERT J. TRACY OF COUNSEL), FOR PERKINS EASTMAN ARCHITECTS, P.C., RESPONDENT/APPELLANT . Kramer Levin Naftalis & Frankel LLP, New York (Philip S. Kaufman of counsel), for Ace American Insurance Company, res — Judgment, Supreme Court, New York County (Bernard J. Fried, J.), entered September 7, 2011, to the extent appealed from, declaring that plaintiff is obligated to defend and indemnify defendant in the underlying federal action, and dismissing the third-party complaint, unanimously modified, on the law, to vacate the dismissal of the third-party complaint and declare that third-party defendant is not obligated to defend or indemnify defendant in the underlying action, and otherwise affirmed, without costs.
In compliance with the “claims made” policy issued to it by plaintiff, defendant timely advised plaintiff of a “Circumstance that may reasonably be expected to give rise to a Claim against [it]” and of the particulars of the potential claim. “ Circumstance” is defined as “an event reported during the Policy Year from which you reasonably expect a Claim may be made.” In correspondence with plaintiff from 2004 to 2005, defendant identified specific problem areas, as well as delays and coordination issues, in the course of the subject nursing home construction project. It identified the owner, contractor, and contractor’s surety as potential claimants for millions of dollars. It noted that the owner was litigious, that the contractor was looking to deflect blame, and that negotiations with the surety over honoring its performance bond were proceeding slowly. Nowhere in any of the notices and letters to plaintiff did defendant limit the potential claim to design errors.
