Bauerschmidt & Sons, Inc. v. Nova Casualty Co.

91 A.D.3d 892, 937 N.Y.2d 600

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2012
• Status: Published

Opinion

On an appeal from a judgment entered after a nonjury trial, the power of this Court “ ‘to review the evidence is as broad as that of the trial court, bearing in mind . . . that due regard must be given to the decision of the Trial Judge who was in a position to assess the evidence and the credibility of the witnesses’ ” (Tornheim v Kohn, 31 AD3d 748, 748 [2006], quoting Universal Leasing Servs. v Flushing Hae Kwan Rest., 169 AD2d 829, 830 [1991]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Huner v State of New York, 90 AD3d 992 [2011]; A. Montilli Plumbing & Heating Corp. v Valentino, 90 AD3d 961 [2011]). Applying this standard here, the record supports the Supreme Court’s determination that the plaintiffs delay in notifying the defendant of the underlying incident was reasonably based on a good faith belief of nonliability (see Tri-State Consumer Ins. Co. v Yaskin, 304 AD2d 560, 561 [2003]; Eveready Ins. Co. v Robinson, 300 AD2d 436, 437 [2002]; Abbey Richmond Ambulance Serv. v Northbrook Prop. & Cas. Ins. Co., 281 AD2d 501, 501-502 [2001]). We decline to disturb the Supreme Court’s determina: tion.

The defendant’s remaining contentions are without merit. Rivera, J.E, Eng, Lott and Sgroi, JJ., concur.