| Columbia Univ. Press, Inc. v Travelers Indem. Co. of Am. |
| 2011 NY Slip Op 07798 [89 AD3d 667] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Columbia University Press, Inc., Respondent, v TravelersIndemnity Company of America, Appellant. |
—[*1] David S. Klausner, PLLC, White Plains, N.Y. (David S. Klausner and Evelyn Miller ofcounsel), for respondent.
In an action, inter alia, for a judgment declaring that the defendant is obligated to defend andindemnify the plaintiff, Columbia University Press, Inc., in an underlying action entitledGeorge Balloutine v Columbia University Press, pending in the Supreme Court, NewYork County, under index No. 11425/07, the defendant appeals, as limited by its brief, from somuch of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated June 29,2010, as denied that branch of its motion which was for summary judgment declaring that it isnot obligated to defend or indemnify the plaintiff in the underlying action.
Ordered that the order is affirmed insofar as appealed from, 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 given to the carrier within a reasonable period oftime (see Sorbara Constr. Corp. v AIUIns. Co., 11 NY3d 805, 806 [2008]; Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743[2005]; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 441[1972]). With respect to policies issued before January 17, 2009 (see Insurance Law§ 3420 [c] [2] [A]), as the subject policy was, an insurer could disclaim coverage when theinsured failed to satisfy the notice condition, without regard to whether the insurer wasprejudiced by the insured's failure to satisfy such condition (see Zimmerman v Peerless Ins. Co., 85 AD3d 1021, 1023 [2011];Ponok Realty Corp. v United Natl.Specialty Ins. Co., 69 AD3d 596, 596-597 [2010]). The insured's failure to satisfy thenotice requirement constitutes "a failure to comply with a condition precedent which, as a matterof law, vitiates the contract" (ArgoCorp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]; see Sorbara Constr.Corp. v AIU Ins. Co., 11 NY3d at 806; Great Canal Realty Corp. v Seneca Ins. Co.,Inc., 5 NY3d at 743; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31NY2d 436, 440 [1972]). However, "there may be circumstances that excuse a failure to givetimely notice, such as where the insured has 'a good-faith belief of nonliability,' provided thatbelief is reasonable" (Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d at 743,quoting Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d at 441;see White v City of New York, 81 NY2d 955, 957 [1993]; Zimmerman v PeerlessIns. Co., 85 AD3d at 1023-1024; Ponok Realty Corp. v United Natl. Specialty [*2]Ins. Co., 69 AD3d at 597). The insured bears the burden ofestablishing the reasonableness of such excuse (see Great Canal Realty Corp. v Seneca Ins.Co., Inc., 5 NY3d at 743; White v City of New York, 81 NY2d at 957; SecurityMut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d at 440), which is ordinarily anissue of fact and not one of law (see Argentina v Otsego Mut. Fire Ins. Co., 86 NY2d748, 750 [1995]; Deso v London & Lancashire Indem. Co. of Am., 3 NY2d 127, 129[1957]; St. James Mech., Inc. v Royal &Sunalliance, 44 AD3d 1030, 1031 [2007]).
Here, the defendant made a prima facie showing of entitlement to judgment as a matter oflaw based on the plaintiff's approximately eight-month delay in notifying the defendant of theunderlying incident (see Great CanalRealty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742 [2005]; Argentina v Otsego Mut.Fire Ins. Co., 86 NY2d at 750; Zimmerman v Peerless Ins. Co., 85 AD3d 1021 [2011]; McGovern-Barbash Assoc., LLC v EverestNatl. Ins. Co., 79 AD3d 981, 983 [2010]; Evangelos Car Wash, Inc. v Utica First Ins. Co., 45 AD3d 727[2007]; 120 Whitehall Realty Assoc.,LLC v Hermitage Ins. Co., 40 AD3d 719 [2007]). However, in opposition, the plaintiffraised a triable issue of fact as to whether the delay was reasonably based on a good-faith beliefof nonliability (see 25th Ave., LLC vDelos Ins. Co., 84 AD3d 781 [2011]; North Country Ins. Co. v Jandreau, 50 AD3d 1429 [2008]; St.James Mech., Inc. v Royal & Sunalliance, 44 AD3d at 1031-1032; Jordan Constr. Prods. Corp. v TravelersIndem. Co. of Am., 14 AD3d 655 [2005]; G.L.G. Contr. Corp. v Aetna Cas. & Sur.Co., 215 AD2d 821, 822 [1995]; Triantafillou v Colonial Coop. Ins. Co., 178 AD2d925, 926 [1991]). Accordingly, the Supreme Court properly denied that branch of the defendant'smotion which was for summary judgment declaring that it was not obligated to defend orindemnify the plaintiff in the underlying action. Angiolillo, J.P., Florio, Leventhal and Cohen,JJ., concur.