Gutlove & Shirvint, Inc. v. Continental Insurance

260 A.D.2d 324, 689 N.Y.S.2d 63, 1999 N.Y. App. Div. LEXIS 4355

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 1999
• Status: Published

Opinion

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered March 20, 1998, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The waiver alleged by plaintiff was properly rejected, since there was no proof of defendant insurer’s knowledge of the right it is alleged to have waived (see, Sargent v Halsey, 42 AD2d 375, 380; see also, Beacon Term. Corp. v Chemprene, Inc., 75 AD2d 350, 355-356, Iv denied 51 NY2d 706). Moreover, “[i]nasmuch as the insured failed to demonstrate actual prejudice by virtue of the insurer’s conduct, the insurer should not * * * be estopped from disclaiming [additional] coverage” (Corcoran v Abbott Sommers, 143 AD2d 874, 876). Finally, defendant’s delay in paying business interruption benefits, attributable to its need to complete its investigation of the claim, was not unreasonably protracted and was adequately justified under the circumstances (see, Stabules v Aetna Life & Cas. Co., 226 AD2d 138, 139). Concur — Rosenberger, J. P., Williams, Andrias, Saxe and Buckely, JJ.