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THE CASE INVOLVES A NEW JERSEY INSURANCE POLICY ISSUED TO A NEW JERSEY COMPANY WHICH WAS DOING SUBWAY WORK IN NEW YORK, PURSUANT TO A 2017 COURT OF APPEALS RULING, WHETHER NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER STATUTE APPLIES DEPENDS ON WHETHER THE INSURED HAS A SUBSTANTIAL BUSINESS PRESENCE IN NEW YORK, MATTER REMITTED FOR DEVELOPMENT OF THE RECORD ON THAT ISSUE (FIRST DEPT).

The First Department, over an extensive two-justice dissent, determined the case, which was affected by a 2017 Court of Appeals decision, needed to be sent back for more fact-finding.  The Court of Appeals case, Carlson v American Intl. Group, Inc. (30 NY3d 288 [2017]), held that the timely disclaimer provisions of New York Insurance Law 3240 (d)(2) applied to insureds located in New York, which was defined to include insureds with a “substantial business presence” in New York.

Everest [the insurer successfully argued in Supreme Court that] it had no duty to defend or indemnify because section 3240(d)(2) applies only to insurance policies “issued or delivered” in New York. Everest argued that it is a New Jersey insurer and that it issued the policy to East Coast, a New Jersey company, and that therefore the policy was not “issued or delivered” in New York. …

Supreme Court, relying upon Carlson v American Intl. Group., Inc., (130 AD3d 1477 [4th Dept 2015]) [reversed by the Court of Appeals], … granted Everest’s cross motion, holding that because the policy was issued and delivered outside of New York State, the timeliness requirements of § 3240(d)(2) did not apply. …

… [T]he first prong of [the Court of Appeals decision in] Carlson was satisfied in this case. The risks covered under the Everest policy include the Queensboro Plaza project, which is located in New York State. However, we find that the record is not sufficiently developed for us to decide whether East Coast [the insured company] had a substantial business presence in New York under the Court of Appeals’ decision in Carlson. * * *

Because the Carlson Court did not set forth a specific definition of substantial business presence, and because the record is insufficiently developed concerning East Coast’s business presence in New York, we remand to allow the parties to develop the record and give Supreme Court an opportunity to meaningfully review the case in light of Carlson. Vista Eng’g Corp. v Everest Indem. Ins. Co., 2018 NY Slip Op 03730, First Dept 5-24-18

INSURANCE LAW (THE CASE INVOLVES A  NEW JERSEY INSURANCE POLICY ISSUED TO A NEW JERSEY COMPANY WHICH WAS DOING SUBWAY WORK IN NEW YORK, PURSUANT TO A 2017 COURT OF APPEALS RULING, WHETHER NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER STATUTE APPLIES DEPENDS ON WHETHER THE INSURED HAS A SUBSTANTIAL BUSINESS PRESENCE IN NEW YORK, MATTER REMITTED FOR DEVELOPMENT OF THE RECORD ON THAT ISSUE (FIRST DEPT))/DISCLAIMER (INSURANCE LAW, THE CASE INVOLVES A  NEW JERSEY INSURANCE POLICY ISSUED TO A NEW JERSEY COMPANY WHICH WAS DOING SUBWAY WORK IN NEW YORK, PURSUANT TO A 2017 COURT OF APPEALS RULING, WHETHER NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER STATUTE APPLIES DEPENDS ON WHETHER THE INSURED HAS A SUBSTANTIAL BUSINESS PRESENCE IN NEW YORK, MATTER REMITTED FOR DEVELOPMENT OF THE RECORD ON THAT ISSUE (FIRST DEPT))

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