| Board of Hudson Riv.-Black Riv. Regulating Dist. v Praetorian Ins.Co. |
| 2008 NY Slip Op 08586 [56 AD3d 929] |
| November 13, 2008 |
| Appellate Division, Third Department |
| Board of Hudson River-Black River Regulating District, Appellant,v Praetorian Insurance Company, Formerly Known as Insurance Corporation of Hanover,Respondent. |
—[*1] White, Fleischner & Fino, L.L.P., New York City (Jason Steinberg of counsel), forrespondent.
Peters, J. Appeal from an order of the Supreme Court (Devine, J.), entered July 10, 2007 inAlbany County, which, among other things, granted defendant's motion for summary judgmentdismissing the complaint.
On July 24, 2005, Christina Chera sustained injuries on property allegedly controlled andmaintained by plaintiff. On October 19, 2005, plaintiff received a notice of claim for personalinjuries and damages relating to the incident, but failed to forward it to defendant, its liabilityinsurer, or otherwise notify defendant of the occurrence. One year later, plaintiff was served witha summons and complaint in the underlying personal injury action. Plaintiff thereafter forwardedthe summons and complaint to its insurance broker, who promptly forwarded them to defendant.Defendant disclaimed coverage based upon plaintiff's failure to notify it of the occurrence "assoon as practicable" and to "[i]mmediately" send it a copy of the notice of claim, as required bythe insurance policy. Plaintiff then commenced this declaratory judgment action seeking tocompel defendant to defend and indemnify it in the underlying action. After joinder of issue, bothparties moved for summary judgment. Finding that plaintiff failed to give timely notice as amatter of law, Supreme Court granted summary judgment in favor of defendant. Plaintiff appealsand we affirm.[*2]
" 'Where a policy of liability insurance requires thatnotice of an occurrence be given "as soon as practicable," such notice must be accorded thecarrier within a reasonable period of time' " (Klersy Bldg. Corp. v Harleysville Worcester Ins. Co., 36 AD3d1117, 1118 [2007], quoting GreatCanal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). Such a noticeprovision is a condition precedent to coverage and, absent a valid excuse, the failure to satisfy thenotice requirement vitiates the contract of insurance (see Great Canal Realty Corp. v SenecaIns. Co., Inc., 5 NY3d at 743; Security Mut. Ins. Co. of N.Y. v Acker-FitzsimonsCorp., 31 NY2d 436, 440 [1972]). Moreover, the insurer need not demonstrate actualprejudice from the delay in order to successfully disclaim coverage (see Great Canal RealtyCorp. v Seneca Ins. Co., Inc., 5 NY3d at 743; Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339[2005]).
Plaintiff concedes that there is no evidence that it furnished notice of the occurrence todefendant prior to October 2006, a full year after it received the notice of claim. Plaintiff's onlyexcuse for the delay is that its then-general counsel "should have" forwarded the notice of claimto defendant when it was received and that it "assumed" that notice had been so provided.Although "[t]here may be circumstances, such as lack of knowledge that an accident has occurredor a reasonable belief in nonliability, that will excuse or explain delay in giving notice"(White v City of New York, 81 NY2d 955, 957 [1993]; see Security Mut. Ins. Co. ofN.Y. v Acker-Fitzsimons Corp., 31 NY2d at 441), mere neglect or inadvertence on the partof plaintiff's employee is not a valid excuse (see e.g. Todd v Bankers Life & Cas. Co.,135 AD2d 1066, 1068 [1987]; Tennant v Farm Bur. Mut. Auto. Ins. Co., 286 App Div117, 120-121 [1955]). Thus, in the absence of a reasonable excuse, plaintiff's one-year delay innotifying defendant of the occurrence was unreasonable as a matter of law (see Argo Corp. vGreater N.Y. Mut. Ins. Co., 4 NY3d at 339-340; Centenniel Ins. Co. v Hoffman, 265AD2d 629, 630 [1999]).[FN*]
Finally, even had plaintiff provided notice to its broker prior to October 2006, notice to aninsurance broker does not constitute notice to the liability carrier (see Security Mut. Ins. Co.of N.Y. v Acker-Fitzsimons Corp., 31 NY2d at 442 n 3; Kamyr, Inc. v St. Paul SurplusLines Ins. Co., 152 AD2d 62, 65 [1989]) and, unlike the circumstances in Jeffrey v Allcity Ins. Co. (26 AD3d355 [2006]), the notification provisions of the instant policy are not ambiguous as to whomust be notified in the event of an occurrence.
Mercure, J.P., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: We further note that, "even if aquestion of fact existed as to whether [plaintiff] complied with its obligation to give notice of asuit 'as soon as practicable,' the failure to comply with the obligation to 'immediately send[defendant] copies of any legal papers received,' for which no valid reason was given,independently absolved [defendant] of its coverage obligations" (Steadfast Ins. Co. v SentinelReal Estate Corp., 283 AD2d 44, 54 [2001], quoting Viles Contr. Corp. v Hartford FireIns. Co., 271 AD2d 349, 349 [2000]).