| Zeldin v Interboro Mut. Indem. Ins. Co. |
| 2007 NY Slip Op 07427 [44 AD3d 652] |
| October 2, 2007 |
| Appellate Division, Second Department |
| Eva Zeldin, as Assignee of Mikhail Markman, Also Known asMikhail Markham, Appellant, v Interboro Mutual Indemnity Insurance Company,Respondent. |
—[*1] Shayne, Dachs, Stanisci, Corker & Sauer, Mineola, N.Y. (Norman H. Dachs of counsel), forrespondent.
In an action, inter alia, to recover damages for a bad faith breach of contract, the plaintiffappeals from an order of the Supreme Court, Kings County (Martin, J.), dated April 28, 2003,which denied her motion for summary judgment on the complaint and granted the defendant'scross motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On March 8, 1998 the plaintiff sustained serious personal injuries when she was a passengerin a vehicle owned and operated by Mikhail Markman, also known as Mikhail Markham. Theplaintiff commenced an action to recover damages for personal injuries against Markman, whowas insured by a policy issued to him by the defendant Interboro Mutual Indemnity InsuranceCompany (hereinafter Interboro). The applicable limit of the liability policy was $25,000. OnAugust 5, 1999, after an inquest, the plaintiff obtained a default judgment against Markman inthe sum of $2,024,657.53. Thereafter, Markman assigned all of his rights and claims againstInterboro to the plaintiff. The plaintiff, as Markman's assignee, subsequently commenced thisaction against Interboro alleging, inter alia, that it committed a bad faith breach of contract byrefusing to defend Markman in the underlying lawsuit.[*2]
"Where an insurance policy requires that notice of anoccurrence be given promptly, notice must be given within a reasonable time in view of all of thefacts and circumstances" (Eagle Ins. Co. v Zuckerman, 301 AD2d 493, 495 [2003];see Merchants Mut. Ins. Co. v Hoffman, 56 NY2d 799, 801-802 [1982]; TravelersIndem. Co. v Worthy, 281 AD2d 411 [2001]). "Providing an insurer with timely notice of apotential claim is a condition precedent, and thus '[a]bsent a valid excuse, a failure to satisfy thenotice requirement vitiates the policy' " (Sayed v Macari, 296 AD2d 396, 397 [2002],quoting Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440[1972]). Insurance Law § 3420 (a) (3) provides that a notice of claim to an insurer may bemade by the insured, the injured person, or any other claimant (see Hazen v Otsego Mut. FireIns. Co., 286 AD2d 708, 709 [2001]; Eveready Ins. Co. v Chavis, 150 AD2d 332,333 [1989]).
Here, although the plaintiff provided written notice to Interboro by letter dated June 1, 1998,it is undisputed that Markman wholly and inexcusably failed to notify Interboro of the accident inviolation of the express requirements of the policy. Inasmuch as Markman failed to comply withthe notice provisions of the policy, he, and therefore the plaintiff, who stands in his shoes forpurposes of this action, is estopped from contending that Interboro improperly disclaimedcoverage on that basis (see Daus v Lumbermen's Mut. Cas. Co., 241 AD2d 665, 666[1997]; Pipoli v United States Fid. & Guar. Co., 38 AD2d 249 [1972]). Significantly, theplaintiff did not commence a declaratory judgment action against Interboro in her capacity as theinjured party, seeking a declaration that Interboro was obligated to defend Markman (see Lang v Hanover Ins. Co., 3 NY3d350, 354-355 [2004]). As a result, any defenses that Interboro might have had againstMarkman were good as against the plaintiff (see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007];Losner v Cashline, L.P., 303 AD2d 647, 648 [2003]).
The plaintiff's contention that the language of the policy required Interboro to show prejudicestemming from the lack of notice is raised for the first time on appeal, and thus, is not properlybefore this Court (see Bender v PeerlessIns. Co., 36 AD3d 1120, 1121 [2007]).
In light of our determination, the plaintiff's remaining contentions have been renderedacademic. Accordingly, the Supreme Court properly granted Interboro's cross motion forsummary judgment dismissing the complaint and denied the plaintiff's motion for summaryjudgment on the complaint. Schmidt, J.P., Rivera, Krausman and Florio, JJ., concur.