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By Christine Malafi

When an insured seeks liability coverage under its general liability or commercial liability policy after it has been sued for personal injuries or death resulting from an accident, New York State Insurance Law § 3420(d) requires the insurance company to make its decision to disclaim liability or deny insurance benefits to the insured and provide “written notice as soon as is reasonably possible” to the insured and those persons making the claim. This obligation usually arises after the insured’s obligations under the applicable insurance policy have been triggered—one of which is the insured’s obligation to provide its insurance company with reasonable, timely notice of the claim in the first instance. So, if the insurance company doesn’t timely refuse to provide insurance coverage on the basis of late notice having been provided to it, that defense will be found to have been waived by the insurance company and unavailable to it in a subsequent suit seeking to force the insurer to provide coverage.

The New York State Court of Appeals recently reviewed these obligations in the context of a claim for coverage brought by a commercial business in connection with property damage suits against it based upon the alleged dumping of hazardous materials by the business, where the Insurance Law denial/disclaimer rules do not apply. The Court instead applied a common-law waiver and estoppel analysis and allowed the insurance company to assert the defense in the insured’s breach of contract action under the applicable insurance policies.

In Estee Lauder Inc. v. OneBeacon Ins. Group, LLC, 28 N.Y.3d 960 (2016), the highest Court in New York State found that the insurance company’s failure to assert an affirmative defense of late notice by the insured, after reviewing all factors, did not waive the defense to coverage in the subsequent suit brought by the insured. The Court found that the insurer in that case had raised late notice by the insured in “early communications” and that the “mere passage of time rather than . . . the insurer’s manifested intention to release a right . . . or on prejudice to the insured” was not a sufficient basis to find that the insurer was prevented from pointing to the insured’s late notice to avoid its coverage obligations.

Therefore, timely written notice of the late notice defense by the insurance company did not waive the potential complete defense to coverage. The insurance company was permitted to amend its Answer to include the defense, meaning, potentially, that the insured will not get the paid-for benefits of its insurance policy due to its late notice of the claim.

The lesson to be taken from this decision is that you must review your insurance policies and know when you are required to provide notice to your insurance company in order to protect your rights in the event of a lawsuit against you. At CMM, we are available to assist you in such a review to help you make sure that you don’t lose your insurance coverage for this reason.

“Let’s get Arthur’s take on it.”

“Arthur has a lot of experience with that.”

“See if Arthur has any suggestions before we finalize the documents.”

These phrases are heard daily in the offices of Campolo, Middleton & McCormick, LLP, where Arthur Yermash is a Senior Associate.  Throughout his tenure at the firm, Arthur has established himself as a talented attorney in the areas of Labor & Employment and Corporate law as well as a trusted resource for his colleagues.

Partners and associates alike would characterize Arthur as a “go-to person” in the office.  He has a unique depth of experience in a variety of complex legal issues.  Chances are, if a matter has a labor and employment or corporate law component, Arthur has come across it and has creative solutions to solve the problem.  He advises clients on compliance with federal, state, and local laws affecting the workplace including payment of wages, overtime, leave requirements, benefits, and hiring.  Arthur is often involved in drafting and negotiating employment-related documents such as employment agreements as well as non-competition, non-disclosure, severance, and option agreements.

Arthur’s practice also includes the representation of employers in wage and hour disputes, as well as defending against investigations by regulatory and government agencies including the New York and United States Departments of Labor, the New York State Attorney General’s Office, the Equal Employment Opportunity Commission, the New York Division of Human Rights, and the Occupational Safety and Health Administration.  His work includes implementing compliance programs and conducting internal investigations in connection with discrimination, compensation, overtime, and other employment issues.  Taking into consideration the unique nature of each employer and its industry, Arthur creates policies and procedures custom-tailored to the needs of the business.

In addition to his extensive employment practice, Arthur has drafted and negotiated hundreds of contracts for various business-related matters.  He has successfully represented and advised businesses in connection with high-value transactions across a variety of sectors.

Arthur’s dedication to his clients has helped countless startups evolve from idea to reality, entrepreneurs to expand their operations, shareholders to obtain maximum value from the sale of their businesses, and companies to establish critical internal policies that impact their bottom line.

Despite his many client obligations, Arthur takes the time to serve as a mentor to the young professionals at the firm.  Arthur was the firm’s first hire in 2006, when he came on board as an intern.  He is a graduate of Baruch College, CUNY (Macaulay Honors College) and Touro College, Jacob D. Fuchsberg Law Center.

After serving as County Executive of New York State’s largest suburban county—with a population of 1.5 million, a workforce of over 10,000 employees, and a budget of $2.7 billion—most people would be ready to slow down.  But not if you’re Steve Levy.

Following his tenure as Suffolk County Executive (2004-2011), Steve joined Campolo, Middleton & McCormick, LLP, with offices in Ronkonkoma and Bridgehampton, in an Of Counsel role to focus on municipal, government relations, and real estate development work, as well as business development and strategy.  Steve was a natural fit for the firm based upon their shared dedication to supporting the people and businesses that call Suffolk home.

Under Steve’s leadership, Suffolk County saw a record investment in open space preservation and alternative energies, an unprecedented commitment to workforce housing, the creation and preservation of over 15,000 jobs through economic development policies, and an over 20 percent reduction in overall crime.  He kept county taxes under control while garnering seven consecutive bond rating increases.

Steve now puts the lessons he learned in his role as Suffolk County CEO to work for his clients, drawing from his own leadership experience to counsel clients on myriad business-related matters.  He focuses on clients in the municipal, real estate, and corporate sectors.

In addition to his legal work, Steve serves as Executive Director of the Center for Cost Effective Government, a cadre of government-savvy community leaders dedicated to empowering the public to take steps to implement the solutions set forth by government reform think tanks.  He is also the Founder and President of Common Sense Strategies, which helps government entities and private businesses slash operating costs and enhance efficiency.

A longtime public servant, Steve served in the Suffolk County Legislature and as a New York State Assemblyman prior to becoming County Executive.  Steve’s dedication to improving our county guides all of his legal work, and uniquely qualifies him for a Leadership in Law Award.