Gresham v. American General Life Insurance

135 A.D.2d 1121, 523 N.Y.S.2d 282, 1987 N.Y. App. Div. LEXIS 52986

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1987
• Status: Published

Opinion

— Order unanimously reversed on the law without costs and defendant’s motion granted. Memorandum: In this action to recover on a disability insurance policy, it was error for the court to deny defendant insurer’s motion for summary judgment dismissing the complaint. Defendant demonstrated its entitlement to judgment as a matter of law based on plaintiff’s failure to comply with the policy condition requiring notice of disability within 20 days after the occurrence or "as soon thereafter as is reasonably possible.” While ordinarily it is a question of fact whether an insured gave timely notice of loss, summary judgment is warranted where the insured has not offered a credible excuse for the delay in notification and where the underlying facts are not in dispute and do not raise conflicting inferences (see, Greenwich Bank v Hartford Fire Ins. Co., 250 NY 116, 131; cf., Hartford Fire Ins. Co. v Masternak, 55 AD2d 472, 474). Here, it is undisputed that plaintiff did not give notice of disability until eight months after the accident. Moreover, the excuses contained in plaintiff’s unverified complaint are patently insufficient. Plaintiff’s unexcused eight-month delay in serving notice of claim precludes recovery on the policy, justifies defendant in disclaiming, and compels the granting of defendant’s motion for summary judgment (see, Vanderbilt v Indemnity Ins. Co., 265 App Div 495, 496; Walterman v Mutual Benefit Health & Acc. Assn., 260 App Div 478, 480-481). (Appeal from order of Supreme Court, Erie County, Ricotta, J. — summary judgment.) Present —Callahan, J. P., Denman, Pine, Balio and Lawton, JJ.