Argentina v. Otsego Mutual Fire Insurance

207 A.D.2d 816, 616 N.Y.S.2d 747, 1994 N.Y. App. Div. LEXIS 8882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 19, 1994
• Status: Published

Opinions

—In an action pursuant to Insurance Law § 3420 (a) (2) to recover from the defendant for a default judgment obtained against its insureds, the defendant appeals from an order of the Supreme Court, Richmond County (Cusick, J.), dated September 12, 1991, which, after a hearing, granted the plaintiffs’ cross motion for summary judgment.

Ordered that the order is affirmed, with costs.

An insured’s good faith belief in nonliability, when reasonable under the circumstances, may excuse a delay in notifying his insurer of an accident (see, Winstead v Uniondale Union Free School Dist., 170 AD2d 500, 503). Whether such belief was, in fact, reasonable is ordinarily a question of fact (see, Winstead v Uniondale Union Free School Dist., supra, at 503).

The Supreme Court concluded, after a hearing, that the insureds promptly notified the defendant upon receipt of the summons and complaint. We find that the insureds’ belief that they would not be subject to liability was reasonable under all the circumstances. Consequently, their delay in notifying the defendant until after service of the summons and complaint was excusable. Miller, Copertino and Altman, JJ., concur.