Meilutis v. Commercial Union Insurance

Appellate Division of the Supreme Court of New York

Meilutis v. Commercial Union Insurance

251 A.D.2d 1015, 674 N.Y.S.2d 234, 1998 N.Y. App. Div. LEXIS 7039

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 10, 1998

StatusPublished

Cited by1 cases

This text of 251 A.D.2d 1015 (Meilutis v. Commercial Union Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Meilutis v. Commercial Union Insurance, 251 A.D.2d 1015, 674 N.Y.S.2d 234, 1998 N.Y. App. Div. LEXIS 7039 (N.Y. Ct. App. 1998).

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Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment because there is an issue of fact whether defendant’s delay of one month in disclaiming coverage was reasonable (see, Utica Fire Ins. Co. v Spagnolo, 221 AD2d 921; see also, Wilczak v Ruda & Capozzi, 203 AD2d 944, 945).

The court also properly denied plaintiff’s cross motion for summary judgment. We agree with plaintiff that defendant waived the defense of breach of conditions precedent by failing to deny with sufficient particularity the allegation in the complaint that plaintiff complied with the condition precedent of providing timely notice of the occurrence to defendant (see, Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201, 218). It does not follow, however, that the waiver renders defendant’s disclaimer of coverage ineffective as a matter of law. Defendant has also disclaimed coverage based upon a policy exclusion. (Appeals from Order of Supreme Court, Monroe County, Bergin, J. — Summary Judgment.) Present— Green, J. P., Pine, Hayes, Callahan and Fallon, JJ.

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—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment because there is an issue of fact whether defendant’s delay of one month in disclaiming coverage was reasonable (see, Utica Fire Ins. Co. v Spagnolo, 221 AD2d 921; see also, Wilczak v Ruda & Capozzi, 203 AD2d 944, 945).

The court also properly denied plaintiff’s cross motion for summary judgment. We agree with plaintiff that defendant waived the defense of breach of conditions precedent by failing to deny with sufficient particularity the allegation in the complaint that plaintiff complied with the condition precedent of providing timely notice of the occurrence to defendant (see, Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201, 218). It does not follow, however, that the waiver renders defendant’s disclaimer of coverage ineffective as a matter of law. Defendant has also disclaimed coverage based upon a policy exclusion. (Appeals from Order of Supreme Court, Monroe County, Bergin, J. — Summary Judgment.) Present— Green, J. P., Pine, Hayes, Callahan and Fallon, JJ.

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Bluebook (online)

251 A.D.2d 1015, 674 N.Y.S.2d 234, 1998 N.Y. App. Div. LEXIS 7039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meilutis-v-commercial-union-insurance-nyappdiv-1998.

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