Feigelson v. Allstate Insurance

New York Court of Appeals

Feigelson v. Allstate Insurance

292 N.E.2d 787, 31 N.Y.2d 913, 340 N.Y.S.2d 646, 1972 N.Y. LEXIS 884

CourtNew York Court of Appeals

DecidedDecember 29, 1972

StatusPublished

Cited by1 cases

This text of 292 N.E.2d 787 (Feigelson v. Allstate Insurance) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Feigelson v. Allstate Insurance, 292 N.E.2d 787, 31 N.Y.2d 913, 340 N.Y.S.2d 646, 1972 N.Y. LEXIS 884 (N.Y. 1972).

Pincite

Opinion

Order affirmed, with costs, in the following memorandum: In this action, brought pursuant to section 167 of the Insurance Law (subd. 7, par. [a]), the record establishes that the plaintiff failed to give the defendant Allstate “ written notice ” of the accident or of the suit against its insured “ within a reasonable time under all the circumstances ”. (See Deso v. London & Lancashire Ind. Co., 3 N Y 2d 127,129; Insurance Law, § 167, subd. 1, pars. [916]*916[c], [d].) It follows, therefore, that the plaintiff is precluded from recovering against the insurer upon the policy. Since he did not in the trial court seek to establish the claim that the defendant had “ waived ” the notice requirements of the policy or was “estopped” from asserting the defense of untimely notice (Insurance Law, § 167, subd. 8; see Appell v. Liberty Mut. Ins. Co., 17 N Y 2d 519, affg. 22 A D 2d 906), he may not do so for the first time in the Court of Appeals. (See Deso v. London & Lancashire Ind. Co., 3 N Y 2d 127,131, supra; see, also, Farr v. Newman, 14 N Y 2d 183,188; Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N. Y. 342, 349.)

Concur: Chief Judge Ftjld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson.

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Order affirmed, with costs, in the following memorandum: In this action, brought pursuant to section 167 of the Insurance Law (subd. 7, par. [a]), the record establishes that the plaintiff failed to give the defendant Allstate “ written notice ” of the accident or of the suit against its insured “ within a reasonable time under all the circumstances ”. (See Deso v. London & Lancashire Ind. Co., 3 N Y 2d 127,129; Insurance Law, § 167, subd. 1, pars. [916]*916[c], [d].) It follows, therefore, that the plaintiff is precluded from recovering against the insurer upon the policy. Since he did not in the trial court seek to establish the claim that the defendant had “ waived ” the notice requirements of the policy or was “estopped” from asserting the defense of untimely notice (Insurance Law, § 167, subd. 8; see Appell v. Liberty Mut. Ins. Co., 17 N Y 2d 519, affg. 22 A D 2d 906), he may not do so for the first time in the Court of Appeals. (See Deso v. London & Lancashire Ind. Co., 3 N Y 2d 127,131, supra; see, also, Farr v. Newman, 14 N Y 2d 183,188; Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N. Y. 342, 349.)

Concur: Chief Judge Ftjld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson.

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292 N.E.2d 787, 31 N.Y.2d 913, 340 N.Y.S.2d 646, 1972 N.Y. LEXIS 884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feigelson-v-allstate-insurance-ny-1972.

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