| Bhatt v Nationwide Mut. Ins. Co. |
| 2009 NY Slip Op 03301 [61 AD3d 1406] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| Sukeerti Bhatt, Respondent, v Nationwide Mutual InsuranceCompany, Appellant. |
—[*1] Longstreet & Berry, LLP, Syracuse (Martha Berry of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Oneida County (Samuel D. Hester, J.), enteredJanuary 11, 2008. The order, insofar as appealed from, denied the motion of defendant forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking to recover supplementaluninsured/underinsured motorist (SUM) benefits under an automobile insurance policy issued toher by defendant. Under the SUM endorsement, plaintiff was required to give defendant noticeof a claim "[a]s soon as practicable." Plaintiff promptly notified defendant of the motor vehicleaccident, which occurred on May 22, 2000, and she filed a claim for no-fault benefits on July 20,2000. On April 7, 2003, plaintiff gave defendant notice of her claim under the SUMendorsement. Defendant disclaimed coverage on the ground that plaintiff failed to provide timelynotice of the SUM claim.
We conclude that Supreme Court properly denied defendant's motion for summary judgmentdismissing the complaint. "[W]here an insured previously gives timely notice of the accident, thecarrier must establish that it is prejudiced by a late notice of SUM claim before it may properlydisclaim coverage" (Rekemeyer v StateFarm Mut. Auto. Ins. Co., 4 NY3d 468, 476 [2005]). Here, it is undisputed that plaintifftimely notified defendant of the accident and, shortly thereafter, filed a claim for no-faultbenefits. Defendant failed to establish that it was prejudiced by plaintiff's delay in providingnotice of the SUM claim (see id. at 475-476). Present—Hurlbutt, J.P., Peradotto,Carni, Green and Pine, JJ.