Summary
Holding that an insured's delay of two months in giving notice of the claim was unreasonable as a matter of law. However Juvenex Ltd. does not address the issue of an insured's untimely notice to an insurer based upon the incorrect advice of an insurance agent that the underlying incident did not fall within the policy nor does it make any reference to Tesler
Summary of this case from Cohen Bros. Realty Corp. v. RLI Ins. Co.Opinion
Nos. 888, 889.
June 23, 2009.
Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered June 25, 2008, dismissing the complaint and declaring that defendant is not obligated to defend or indemnify plaintiff in the underlying personal injury action, unanimously affirmed, with costs. Appeal from order, same court (Leland G. DeGrasse, J), entered on or about May 23, 2008, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Anthony Balsamo, New York, for appellant.
Ford Marrin Esposito Witmeyer Gleser, L.L.P., New York (James M. Adrian of counsel), for respondent.
Before: Gonzalez, P.J., Sweeny, Buckley, Renwick and Freedman, JJ.
Plaintiffs delay of two months in giving defendant notice of the claim was unreasonable as a matter of law ( see 2130 Williamsbridge Corp. v Interstate Indem. Co., 55 AD3d 371; Republic N.Y. Corp. v American Home Assur. Co., 125 AD2d 247). Notice to plaintiffs broker did not constitute notice to defendant ( Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 442 n 3 [1972]).
We decline to consider plaintiffs argument, raised for the first time on appeal, that the notice of claim provided to defendant by the injured person pursuant to Insurance Law § 3420 (a) (3) was timely ( see Douglas Elliman-Gibbons Ives v Kellerman, 172 AD2d 307, 308, lv denied 78 NY2d 856). Were we to consider it, we would find that the delay in the injured person's notice to defendant after he ascertained defendant's identity was also unreasonable as a matter of law ( see 2130 Williamsbridge Corp., supra; Republic N.Y. Corp., supra).