288/98 West End Tenants Corp. v. Federal Insurance

—Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about April 10, 1998, which, in a declaratory judgment action concerning whether defendant insurer must participate in the defense of plaintiffs’ directors and officers of a residential cooperative in an underlying action brought by a shareholder being defended by plaintiffs’ insurers, upon the parties’ respective motions for summary judgment, declared in defendant’s favor that plaintiffs must continue to defend the underlying action without receiving any contribution from defendant for legal fees and related expenses, unanimously affirmed, without costs.

The motion court correctly held that plaintiffs’ five-year delay in giving defendant notice of claim was not justified under the subject policy. The policy required notice as soon as practicable of any claim made against any insured, “insured” being defined not only as the members of the cooperative’s board of directors, who were added as defendants in the underlying action in 1996, but also the cooperative itself, which was named as a defendant in the original 1991 complaint. Accordingly, defendant’s disclaimer of coverage was valid (see, American Home Assur. Co. v International Ins. Co., 90 NY2d 433). Concur — Sullivan, J. P., Rosenberger, Wallach and Mazzarelli, JJ.