| Courduff's Oakwood Rd. Gardens & Landscaping Co., Inc. v MerchantsMut. Ins. Co. |
| 2011 NY Slip Op 03795 [84 AD3d 717] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Courduff's Oakwood Road Gardens & Landscaping Company, Inc.,Respondent, v Merchants Mutual Insurance Company,Appellant. |
—[*1] Curtis, Vasile P.C., Merrick, N.Y. (Roy W. Vasile of counsel), for respondent.
In an action for a judgment declaring that the defendant is obligated to defend and indemnifythe plaintiff in an underlying action entitled Molion v Courduff's Oakwood Road Gardens &Landscape Co., pending in the United States District Court for the Eastern District of NewYork under civil index number 07-01168, the defendant appeals, as limited by its brief, from somuch of an order of the Supreme Court, Suffolk County (Baisley Jr., J.), dated August 18, 2010,as denied its cross motion for summary judgment declaring that it is not obligated to defend orindemnify the plaintiff in the underlying action.
Ordered that the order is affirmed insofar as appealed from, with costs.
Where an insurance policy requires that notice of an occurrence be given "as soon aspracticable," notice must be given within a reasonable time in view of all of the circumstances(Great Canal Realty Corp. v Seneca Ins.Co., Inc., 5 NY3d 742, 743 [2005] [internal quotation marks omitted]; see Ponok Realty Corp. v United Natl.Specialty Ins. Co., 69 AD3d 596, 597 [2010]; 120 Whitehall Realty Assoc., LLC v Hermitage Ins. Co., 40 AD3d719, 721 [2007]; Genova v Regal Mar. Indus., 309 AD2d 733, 734 [2003]). "Theinsured's failure to satisfy the notice requirement constitutes 'a failure to comply with a conditionprecedent which, as a matter of law, vitiates the contract' " (Great Canal Realty Corp. vSeneca Ins. Co., Inc., 5 NY3d at 743, quoting Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005];see Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at 597; Sputnik Rest. Corp. v United Natl. Ins.Co., 62 AD3d 689 [2009]). "[C]ircumstances may exist that will excuse or explain theinsured's delay in giving notice, such as a reasonable belief in nonliability" (Genova v RegalMar. Indus., 309 AD2d at 734; see Great Canal Realty Corp. v Seneca Ins. Co., Inc.,5 NY3d at 743-744; Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at597; C.C.R. Realty of Dutchess v NewYork Cent. Mut. Fire Ins. Co., 1 AD3d 304, 305 [2003]). The burden of demonstratingthe reasonableness of the excuse lies with the insured (see Ponok Realty Corp. v United Natl.Specialty Ins. Co., 69 AD3d at 597; Genova v Regal Mar. Indus., 309 AD2d at 734).
In general, the existence of a good faith belief that the injured party would not seek to holdthe insured liable, and the reasonableness of such belief, are questions of fact for the factfinder(see Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at 597; Genova vRegal Mar. Indus., 309 AD2d at 734; C.C.R. Realty of Dutchess v New York Cent. Mut.Fire Ins. [*2]Co., 1 AD3d at 305). Nevertheless, summaryjudgment may be awarded to the insurer if, construing all inferences in favor of the insured, theevidence establishes, as a matter of law, that the insured's belief in nonliability was unreasonableor in bad faith (see Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at597; 120 Whitehall Realty Assoc., LLC v Hermitage Ins. Co., 40 AD3d at 721;Genova v Regal Mar. Indus., 309 AD2d at 734).
Here, the defendant established its prima facie entitlement to judgment as a matter of law bydemonstrating that the plaintiff had immediate notice of the accident and resulting injury thatoccurred on its premises but failed to notify the defendant of this occurrence until 19 monthslater (see Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at 597; St. James Mech., Inc. v Royal &Sunalliance, 44 AD3d 1030 [2007]). Consequently, the burden shifted to the plaintiff toraise a triable issue of fact as to whether there existed a reasonable excuse for its delay innotifying the defendant (see Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69AD3d at 597). Under the circumstances here, construing all inferences in favor of the plaintiff,the plaintiff raised a triable issue of fact as to whether its delay in giving notice of the occurrenceto the defendant was reasonably founded upon a good faith belief that no lawsuit would becommenced against it (see Klersy Bldg.Corp. v Harleysville Worcester Ins. Co., 36 AD3d 1117 [2007]; Jordan Constr. Prods. Corp. v TravelersIndem. Co. of Am., 14 AD3d 655 [2005]; see also Merchants Mut. Ins. Co. vHoffman, 56 NY2d 799 [1982]; Sphere Drake Ins. Co. v Aspen Tree Specialists, 234AD2d 358, 359 [1996]). Accordingly, the Supreme Court properly denied the defendant's crossmotion for summary judgment declaring that it was not obligated to defend or indemnify theplaintiff in the underlying action. Angiolillo, J.P., Florio, Lott and Austin, JJ., concur. [PriorCase History: 2010 NY Slip Op 32215(U).]