State Farm Mutual Automobile Insurance v. Ok Hwa Pak

266 A.D.2d 397, 698 N.Y.S.2d 306, 1999 N.Y. App. Div. LEXIS 11519

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1999
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an underinsured motorist claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), entered September 18, 1998, which, in effect, denied the petition.

Ordered that the order is affirmed, with costs.

An insured must provide notice of a claim for underinsurance benefits within the time limit provided for in the policy, or within a reasonable time under all the circumstances (see, Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 NY2d 436, 440). This means that notice must be given within a reasonable time after the accident (see, Schiebel v Nationwide Mut. Ins. Co., 166 AD2d 520). Whether notice was given within a reasonable time depends upon whether the insured acted with “due diligence” in ascertaining the insurance status of the other vehicle involved in the collision, a determination which will vary with the facts and circumstances of each case (Matter of Nationwide Mut. Ins. Co. v Edgerson, 195 AD2d 560, 561). The insured made such a showing here, and therefore, made a timely claim. Bracken, J. P., Joy, Goldstein and Luciano, JJ., concur.