| Bauerschmidt & Sons, Inc. v Nova Cas. Co. |
| 2010 NY Slip Op 00215 [69 AD3d 668] |
| January 12, 2010 |
| Appellate Division, Second Department |
| Bauerschmidt & Sons, Inc., Respondent, v Nova CasualtyCompany, Appellant. |
—[*1] Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Robert N. Zausmer of counsel),for respondent.
In an action, inter alia, for a judgment declaring that the defendant is obligated to defend andindemnify the plaintiff in an underlying action entitled Fiore v Bauerschmidt & Sons, Inc.,commenced in Supreme Court, Kings County, under index No. 4645/08, the defendantappeals from an order of the Supreme Court, Queens County (James Golia, J.), dated June 30,2009, which denied its motion for summary judgment.
Ordered that the order is affirmed, with costs.
Where, as here, a policy of liability insurance requires that notice of an occurrence be given"as soon as practicable," such notice must be accorded to the carrier within a reasonable periodof time (see Great Canal Realty Corp. vSeneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]; Security Mut. Ins. Co. of N.Y. vAcker-Fitzsimons Corp., 31 NY2d 436, 441 [1972]). However, there may be circumstanceswhere the insured's failure to give timely notice is excusable, such as where the insured has agood-faith belief in nonliability (see Security Mut. Ins. Co. of N.Y. v Acker-FitzsimonsCorp., 31 NY2d at 441). The insured bears the burden of establishing the reasonableness ofthe proffered excuse (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d at744). "Ordinarily, the question of whether the insured had a good faith belief in nonliability, andwhether that belief was reasonable, presents an issue of fact and not one of law" (St. James Mech., Inc. v Royal &Sunalliance, 44 AD3d 1030, 1031 [2007]; see Hermitage Ins. Co. v Arm-ing, Inc., 46 AD3d 620, 621 [2007];Hudson City School Dist. v Utica Mut. Ins. Co., 241 AD2d 641, 642 [1997]; Kim vMaher, 226 AD2d 350 [1996]; G.L.G. Contr. Corp. v Aetna Cas. & Sur. Co., 215AD2d 821, 822-823 [1995]).
Here, the defendant made a prima facie showing of entitlement to judgment as a matter oflaw based on the plaintiff's approximately four-month delay in notifying the defendant of theunderlying incident (see Avery &Avery, P.C. v American Ins. Co., 51 AD3d 695, 697-698 [2008]). In opposition, theplaintiff raised a triable issue of fact as to whether the delay was reasonably based on agood-faith belief of nonliability (see St. James Mech., Inc. v Royal & Sunalliance, 44AD3d at 1031). Accordingly, the Supreme Court properly denied the defendant's motion forsummary [*2]judgment. Rivera, J.P., Leventhal, Belen andAustin, JJ., concur.