1700 Associates v. Public Service Mutual Insurance

256 A.D.2d 456, 681 N.Y.S.2d 795, 1998 N.Y. App. Div. LEXIS 13499

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1998
• Status: Published

Opinion

—In an action, inter alia, for a judgment declaring that the defendant has a duty to defend and indemnify the plaintiff in an action entitled Bell v 77 Realty Corp., pending in the Supreme Court, Kings County, under Index No. 166591/94, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Kangs County (Carson, J.), dated March 4, 1998, which denied its motion for summary judgment, granted the plaintiffs cross motion for summary judgment, and declared that the defendant has a duty to defend and indemnify the plaintiff in the action entitled Bell v 77 Realty Corp.

Ordered that the order and judgment is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and it is declared that the defendant has no duty to defend and indemnify the plaintiff in the action entitled Bell v 77 Realty Corp. (supra).

The plaintiff had the burden of demonstrating a reasonable excuse for delaying more than six months in notifying the defendant of the accident which gave rise to the underlying personal injury action (see, Argentina v Otsego Mut. Fire Ins. Co., 86 NY2d 748; Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 NY2d 436). Under the circumstances of this case, the plaintiffs belief that liability would not result was unreasonable as a matter of law (see, Vradenburg v Prudential Prop. & Cas. Ins. Co., 212 AD2d 913; Herold v East Coast Scaffolding, 208 AD2d 592; cf., D'Aloia v Travelers Ins. Co., 85 NY2d 825). Rosenblatt, J. P., Ritter, Copertino and Thompson, JJ., concur.