TOWER INSURANCE COMPANY OF NEW YORK, plf-ap, v. RONG RONG SUN a/k/a ANDY XU, ETC. def, ALEJO GOMEZ, AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, FULVIA RODRIGUEZ, ETC. def-res

8777. TOWER INSURANCE COMPANY OF NEW YORK, plf-ap, v. RONG RONG SUN a/k/a ANDY XU, ETC. def, ALEJO GOMEZ, AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, FULVIA RODRIGUEZ, ETC. def-res — Law Office of Max W. Gershweir, New York (Max W. Gershweir of counsel), for ap — Morelli Ratner PC, New York (David T. Sirotkin of counsel), for res — Order, Supreme Court, New York County (Richard F. Braun, J.), entered August 11, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiff insurer's motion for summary judgment declaring that it is not obligated to indemnify or defend its insured, defendant Andy Xu, in the underlying personal injury action, reversed, on the law, the motion granted, without costs, and it is so declared.

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8777. TOWER INSURANCE COMPANY OF NEW YORK, plf-ap, v. RONG RONG SUN a/k/a ANDY XU, ETC. def, ALEJO GOMEZ, AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, FULVIA RODRIGUEZ, ETC. def-res — Law Office of Max W. Gershweir, New York (Max W. Gershweir of counsel), for ap — Morelli Ratner PC, New York (David T. Sirotkin of counsel), for res — Order, Supreme Court, New York County (Richard F. Braun, J.), entered August 11, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiff insurer’s motion for summary judgment declaring that it is not obligated to indemnify or defend its insured, defendant Andy Xu, in the underlying personal injury action, reversed, on the law, the motion granted, without costs, and it is so declared.

On this record, plaintiff, Tower Insurance Company of New York, is entitled to summary judgment declaring it free of any obligation to defend or indemnify its insured in the underlying personal injury action. As discussed below, neither the insured nor the injured party ever gave Tower notice of the underlying incident or the ensuing lawsuit. In particular, the injured party failed to give Tower notice, or even to conduct further inquiry, for nearly two months after his counsel received a policy renewal certificate evidencing that Tower had renewed the insured’s policy only five months after the incident. Under these circumstances, to deny Tower summary judgment would be to abrogate any duty of an injured party to make a reasonable effort, judged by “the means available” to it (Appel v. Allstate Ins. Co., 20 AD3d 367, 369 [1st Dept 2005] [internal quotation marks omitted]), to give notice to an insurer pursuant to Insurance Law §3420(a) (3). We find no warrant for this result in the statute or in case law.

TOWER INSURANCE COMPANY OF NEW YORK, plf-ap, v. RONG RONG SUN a/k/a ANDY XU, ETC. def, ALEJO GOMEZ, AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, FULVIA RODRIGUEZ, ETC. def-res

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