Summary
holding in automobile insurance context that after timely notice of claim insurer could not disclaim based on late notice of suit absent prejudice
Summary of this case from Pactrans Air Seas v. New York MarineOpinion
April 26, 2007.
Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered May 2, 2006, which, inter alia, granted defendant Kuok Hang Leong's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to declare that plaintiff insurer is obligated to indemnify its insured in the underlying action, and otherwise affirmed, with costs in favor of defendants.
Before: Mazzarelli, J.P., Saxe, Sullivan, McGuire and Kavanagh, JJ.
Having received timely notice of claim, plaintiff insurer was not entitled to disclaim coverage based on untimely notice of the claimant's commencement of litigation unless it was prejudiced by the late notice ( see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476; Matter of Brandon [ Nationwide Mut. Ins. Co.], 97 NY2d 491, 498), and such prejudice was not shown. The relief afforded defendant claimant Kuok Hang Leong was proper notwithstanding the default of plaintiff's insured. Indeed, in enacting Insurance Law § 3420, the Legislature has made it clear that the right of a claimant to seek recovery of insurance proceeds is not defeated by the insured's failure to perform its claim-related obligations.
We modify only to declare in defendant's favor ( see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
We have considered plaintiff's remaining arguments and find them unavailing.
[ See 12 Misc 3d 740 (2006).]