Fenske v. State Farm Mutual Automobile Insurance

8 A.D.3d 1005, 778 N.Y.S.2d 363, 2004 N.Y. App. Div. LEXIS 8159

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 2004
• Status: Published

Opinion

Appeal and cross appeal from an order of the Supreme Court, Oswego County (James W. McCarthy, A.J.), entered July 9, 2003. The order denied defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs cross motion for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff was injured in a motor vehicle accident and commenced this action after defendant, his insurer, refused to provide him with supplemental underinsured motorist benefits. Defendant moved for summary judgment dismissing the complaint on the ground, that plaintiff failed to provide the requisite written notice of his claim as soon as practicable, and plaintiff cross-moved for summary judgment. Supreme Court properly denied the motion and cross motion. We agree with the court that there is an issue of fact whether plaintiff has a reasonable excuse for his delay of nearly one year in providing the requisite notice and, “[t]hus, whether notice was given ‘as soon as practicable’ presents an issue of fact precluding summary judgment” (Matter of Travelers Ins. Co. [DeLosh], 249 AD2d 924, 926 [1998]). Present—Green, J.P., Pine, Scudder, Martoche and Hayes, JJ.