KAREN MANOR ASSOCIATES LLC plf-res, v. VIRGINIA SURETY COMPANY, INC. def-ap, ARCH INSURANCE GROUP, INC. def-res

11701. KAREN MANOR ASSOCIATES LLC plf-res, v. VIRGINIA SURETY COMPANY, INC. def-ap, ARCH INSURANCE GROUP, INC. def-res — Carroll, McNulty & Kull L.L.C., New York (Kristin V. Gallagher of counsel), for Virginia Surety Company, Inc., ap — Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for Greenwich Insurance Company, ap — Goldberg & Carlton, PLLC, New York (Michael S. Leyden of counsel), for Karen Manor Associates and Finkelstein Morgan LLC, res — Clausen Miller PC, New York (Melinda S. Kollross of counsel), for Arch Specialty Insurance Company, res — Manuel Moses, New York, for Comba Gogo, res — Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered March 4, 2013, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motion for summary judgment declaring that, from the date of the order forward, defendants Virginia Surety Company, Inc. and Greenwich Insurance Company shall share the costs of defending them in the underlying personal injury action on a time-on-the-risk basis, granted defendants Arch Insurance Group Inc. and Arch Specialty Insurance Company’s (together, Arch) motion for summary judgment dismissing the complaint as against them, and denied Virginia’s motion for summary judgment declaring that it has no obligation to indemnify plaintiffs in the underlying action, declaring instead that Virginia is obligated to indemnify plaintiffs on a time-on-the-risk basis, unanimously affirmed, without costs.

The motion court correctly determined that an issue of fact exists whether the infant suffered a physical injury, i.e., sickness or disease resulting from exposure to and ingestion of lead paint, during the Virginia policy period. The motion court also correctly concluded that Arch was entitled to summary judgment dismissing the complaint. Unrefuted evidence showed that the lead paint condition was abated before the Arch policy period commenced. The April 7, 2003 notification from the New York City Department of Mental Health and Hygiene is prima facie evidence that the lead paint condition had been abated (Public Health Law §10). In addition, plaintiff testified that repairs to correct the conditions were made in all relevant rooms in the apartment.