Saturday, May 17, 2008

If At First You Don't Succeed, Move Again

Scordio Constr., Inc. v. Sirius Am. Ins. Co.
(2nd Dept., decided 5/13/2008)

This is the second instance in the past 45 days of a liability insurer losing a motion then winning a renewal motion for summary judgment on late notice. See, FOILed Again.

Scordio Construction brought this DJ action for defense and indemnification coverage in relation to an underlying personal injury action. Sirius had disclaimed coverage for Scordio's late notice of occurrence. Scordio moved and Sirius cross-moved for summary judgment, and the lower court granted Scordio's motion.

Sirius then moved to renew its motion for summary judgment based on new facts or evidence. In REVERSING the lower court's denial of that motion and granting summary judgment to Sirius, the Second Department held:

[Sirius] properly raised new facts not offered in opposition to the prior motion (see CPLR 2221[e][2]). Considering, among other things, the plaintiff's obligations in paragraphs 7 and 8 of the construction contract dated December 10, 2003, the plaintiff knew or should have known of a potential claim at the time of the occurrence in July 2004. The notice the plaintiff provided to the appellant more than one year later was, under the circumstances, unreasonable as a matter of law.

As opposed to motions to reargue, motions to renew must be based on newly discovered evidence that was not known and available to the movant at the time of the original motion. This decision refers to and relies on provisions in Scordio's construction contract but does not indicate whether those provisions alone were the "new facts" supporting Sirius' motion, and why the contract was not known or avaialable to Sirius at the time of the initial motions.

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