Opinion
Argued September 4, 1975
Decided October 16, 1975
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, VINCENT A. MASSI, J.
William F. McNulty, Harold M. Foster and Anthony J. McNulty for appellant.
Sherwin Grossfield for respondent.
MEMORANDUM. Order affirmed, with costs.
Both the trial court and a majority of the Appellate Division found as an ultimate fact that the circumstances in this case did not give insured any notice that there was a possibility of liability for any defect in the rebuilt used machine it had previously sold. Both courts stressed that insured learned of the accident only incidentally because he was called to inspect the correctness of the reassembly of the machine sometime after the accident. Involved is a finding of fact beyond review by this court. The circumstances are quite different from those in 875 Forest Ave. Corp. v Aetna Cas. Sur. Co. ( 37 A.D.2d 11, affd 30 N.Y.2d 726), and Empire City Subway Co. v Greater N.Y. Mut. Ins. Co. ( 35 N.Y.2d 8). In the Forest Ave. case, there was no basis to permit a finding or inference of notice. In the Empire City case, the circumstances established that an accident had occurred and the only question was its location. Indeed, the location was determinative of the identity of the one subject to liability; hence, the reversal for failure to offer any credible explanation of the delay in giving notice (p 14).
On this view, there was sufficient evidence to sustain the finding of fact by the courts below, and this court is powerless to overturn the result.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.