RICHARD RIVERA, PLAINTIFF, v. CORE CONTINENTAL CONSTRUCTION 3, LLC def

10221. RICHARD RIVERA, PLAINTIFF, v. CORE CONTINENTAL CONSTRUCTION 3, LLC def — CORE CONTINENTAL CONSTRUCTION 3, LLC, Third-Party plf-res, v. MT. HAWLEY INSURANCE COMPANY, Third-Party def-ap, ORION ELEVATOR, INC. Third-Party def — Kenney Shelton Liptak Nowak LLP, Buffalo (Timothy E. Delahunt of counsel), for ap — Pollack, Pollack, Isaac DeCicco, New York (Jillian Rosen of counsel), for Core Continental Construction 3, LLC, res — Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered April 4, 2012, which, to the extent appealed from as limited by the briefs, denied third-party defendant Mt. Hawley's motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that Mt. Hawley is not obligated to defend or indemnify defendant/third-party plaintiff Core in the main personal injury action.

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10221. RICHARD RIVERA, PLAINTIFF, v. CORE CONTINENTAL CONSTRUCTION 3, LLC def — CORE CONTINENTAL CONSTRUCTION 3, LLC, Third-Party plf-res, v. MT. HAWLEY INSURANCE COMPANY, Third-Party def-ap, ORION ELEVATOR, INC. Third-Party def — Kenney Shelton Liptak Nowak LLP, Buffalo (Timothy E. Delahunt of counsel), for ap — Pollack, Pollack, Isaac DeCicco, New York (Jillian Rosen of counsel), for Core Continental Construction 3, LLC, res — Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered April 4, 2012, which, to the extent appealed from as limited by the briefs, denied third-party defendant Mt. Hawley’s motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that Mt. Hawley is not obligated to defend or indemnify defendant/third-party plaintiff Core in the main personal injury action.

The notice provision in the pre-2009 Mt. Hawley policy at issue operates as a condition precedent to coverage, and late notice of an occurrence, absent a valid excuse, vitiates coverage as a matter of law, regardless of any prejudice to Mt. Hawley (see National Union Fire Ins. Co. of Pittsburgh, Pa. v. Great Am. E&S Ins. Co., 86 AD3d 425, 426 [1st Dept 2011]). Here, the underlying accident occurred on May 26, 2009, and there is no dispute that Core, the insured and general contractor, was immediately aware of the accident and plaintiff’s injuries. Core, however, did not place Mt. Hawley on notice until November 2009; therefore, notice was untimely as a matter of law (see Brownstone Partners/AF&F, LLC v. A. Aleem Constr., Inc., 18 AD3d 204, 205 [1st Dept 2005] [five-month delay untimely], and Paramount Ins. Co. v. Rosedale Gardens, 293 AD2d 235 [1st Dept 2002] [7 -month delay untimely]).

RICHARD RIVERA, PLAINTIFF, v. CORE CONTINENTAL CONSTRUCTION 3, LLC def

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