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AMERICAN EMPIRE SURPLUS LINES INS. CO. v. L&G MASONRY CORP.

Index No. 652695/18. Appeal Nos. 13735, [M-791]. Case No. 2020-02632.

194 A.D.3d 401 (2021)

143 N.Y.S.3d 201

2021 NY Slip Op 02736

American Empire Surplus Lines Insurance Company, Appellant-Respondent, v. L&G Masonry Corp. et al., Defendants, and St. Augustine Apartments LLC et al., Respondents-Appellants.

Appellate Division of the Supreme Court of New York, First Department.

Decided May 4, 2021.

Attorney(s) appearing for the Case

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City ( Maureen E. O'Connor of counsel), for appellant-respondent.

Baxter Smith & Shapiro, P.C., Hicksville ( Bryan R. Forbes of counsel), for St. Augustine Apartments LLC, respondent-appellant.

Schnader Harrison Segal & Lewis, LLC, New York ( Bruce M. Strikowsky , of counsel), for Mega Contracting Group, LLC, respondent-appellant.

Locke Lord LLP, New York ( Jeffrey S. Kramer of counsel), for amicus curiae.

Concur—Gische, J.P., Mazzarelli, Oing, González, JJ.

The first named insured's failure to submit to a premium audit is not in this case a sufficient basis for the vitiation of coverage (see generally Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 N.Y.2d 576, 581 [1992]). Plaintiff identified no language in the contract indicating that the failure to submit to a premium audit was a condition of coverage. Contrary to plaintiff's contention, the failure to submit to a premium audit is...

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