QUALITY BUILDING CONTRACTOR, INC., plf-res, v. DELOS INSURANCE COMPANY FORMERLY KNOWN AS SIRIUS AMERICA INSURANCE COMPANY, Defendant-Appellant-res, UTICA FIRST INSURANCE COMPANY, Defendantres-res

10764. QUALITY BUILDING CONTRACTOR, INC., plf-res, v. DELOS INSURANCE COMPANY FORMERLY KNOWN AS SIRIUS AMERICA INSURANCE COMPANY, Defendant-Appellant-res, UTICA FIRST INSURANCE COMPANY, Defendantres-res — Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for appellantres — Farber, Brocks & Zane, Garden City (Tracy L. Frankel of counsel), for res-res — Carroll McNulty & Kull, LLC, New York (Douglas K. Eisenstein of counsel), for res — Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered May 22, 2012, which, in this action seeking a declaration as to insurance coverage, granted plaintiff's motion for summary judgment declaring that defendant Delos Insurance Company f/k/a Sirius America Insurance Company (Sirius) is obligated to defend and indemnify plaintiff for all claims asserted in an underlying personal injury action, unanimously reversed, on the law, without costs, and the motion denied. Cross appeal from same order and judgment (one paper), unanimously dismissed, without costs.

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10764. QUALITY BUILDING CONTRACTOR, INC., plf-res, v. DELOS INSURANCE COMPANY FORMERLY KNOWN AS SIRIUS AMERICA INSURANCE COMPANY, Defendant-Appellant-res, UTICA FIRST INSURANCE COMPANY, Defendantres-res — Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for appellantres — Farber, Brocks & Zane, Garden City (Tracy L. Frankel of counsel), for res-res — Carroll McNulty & Kull, LLC, New York (Douglas K. Eisenstein of counsel), for res — Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered May 22, 2012, which, in this action seeking a declaration as to insurance coverage, granted plaintiff’s motion for summary judgment declaring that defendant Delos Insurance Company f/k/a Sirius America Insurance Company (Sirius) is obligated to defend and indemnify plaintiff for all claims asserted in an underlying personal injury action, unanimously reversed, on the law, without costs, and the motion denied. Cross appeal from same order and judgment (one paper), unanimously dismissed, without costs.

Although the court properly found that Sirius’s disclaimer of coverage based on a late notice of claim was ineffective as a matter of law (see George Campbell Painting v. National Union Fire Ins. Co. of Pittsburgh, PA, 92 AD3d 104, 106 [1st Dept 2012]), issues of fact exist with respect to the timeliness of Sirius’s disclaimer of coverage based on an exclusion endorsement in the subject insurance policy (see Those Certain Underwriters at Lloyds, London v. Gray, 49 AD3d 1 [1st Dept 2007]). Indeed, a trier of fact should determine when the grounds for the exclusion endorsement disclaimer were “readily apparent” to Sirius, and whether Sirius reasonably delayed issuing its disclaimer during its investigation into the applicability of the endorsement (id. at 4).

QUALITY BUILDING CONTRACTOR, INC., plf-res, v. DELOS INSURANCE COMPANY FORMERLY KNOWN AS SIRIUS AMERICA INSURANCE COMPANY, Defendant-Appellant-res, UTICA FIRST INSURANCE COMPANY, Defendantres-res

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