2833 Third Avenue Realty Associates v. Marcus

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered on or about December 18, 2003, which, to the extent appealed from, denied defendants’ motion for summary judgment and declared that defendant Public Service Mutual Insurance Company shall defend and indemnify plaintiff 2833 Third Avenue Realty Associates in the underlying personal injury action, unanimously affirmed, with costs.

Although plaintiff insureds failed to provide timely notice of claim and forward the summons and complaint as required by the policy, defendants’ disclaimer after 37 days was unreasonable as a matter of law since the grounds for the disclaimer were evident from the face of the late notice of claim (see West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278 [2002]). Concur—Nardelli, J.P., Mazzarelli, Saxe, Friedman and Catterson, JJ.