Roche v. G.E. Capital Life Assurance Co.

281 A.D.2d 932, 722 N.Y.S.2d 456, 2001 N.Y. App. Div. LEXIS 2822

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2001
• Status: Published

Opinion

Order and judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of G.E. Capital Life Assurance Company of New York (defendant) for summary judgment dismissing the amended complaint against it. Plaintiffs disability insurance policy requires written notice to defendant within 45 days of the possibility of a claim, and it was not until 1998 that plaintiff notified defendant of his injury sustained in 1994. Contrary to the contention of plaintiff, the court properly determined that his notice of disability to defendant was untimely and that there was no reasonable excuse for the more than four-year delay. “[T]he giving of the required notice is a condition to the insurer’s liability * * * Absent a valid excuse, a failure to satisfy the notice requirement vitiates the policy” (Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 NY2d 436, 440; see, Todd v Bankers Life & Cas. Co., 135 AD2d 1066, 1067). Plaintiff further contends that the policy language with respect to notice is ambiguous. We disagree. “Unless otherwise defined by the policy, words and phrases are to be understood in their plain, ordinary, and popularly understood sense, rather than in a forced or technical sense” (Hartford Ins. Co. v Halt, 223 AD2d 204, 212, lv denied 89 NY2d 813). We have considered plaintiffs remaining contentions and conclude that they lack merit. (Appeal from Order and Judgment of Supreme Court, Monroe County, Stander, J. — Summary Judgment.) Present— Pigott, Jr., P. J., Hayes, Scudder, Burns and Lawton, JJ.