Downey v. 10 Realty Co., LLC
911 N.Y.S.2d 67
N.Y. App. Div.
2010
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John Downey, Plaintiff, v 10 Realty Co., LLC, Defendant. 10 Realty Co., LLC, Third-Party Plaintiff-Appellant, v Greater New York Mutual Insurance Company, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division, First Department, New York

August 20, 2009

911 NYS2d 67

Carol R. Edmead, J.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered August 20, 2009, which granted the motion by third-party defendant Greater New York Mutual (GNYM) to dismiss the third-party complaint, unanimously affirmed, without costs.

GNYM had no duty to defend or indemnify its insured in the negligence action. According to the complaint, bill of particulars and deposition testimony in the underlying tort action, plaintiff sued for injuries that allegedly occurred in October —or, at the very earliest, August —of 2002, which was outside the insurance policy period that ended on July 1 of that year (see

;
). Plaintiff‘s alleged exposure to mold during the policy period did not trigger any duty to provide coverage thereafter, as New York follows the “injury-in-fact” test which “rests on when the injury, sickness, disease or disability actually began” and “requires the insured to demonstrate actual damage or injury during the policy period” (
, lv denied
; cf.
, modfg
). Concur—Andrias, J.P., Catterson, Moskowitz, Manzanet-Daniels and Román, JJ.