Summary
affirming a grant of summary judgment in favor of the insurer where the insured waited over five years to submit notice of claim for an alleged disability
Summary of this case from Falco v. Unum Provident Corp.Opinion
2002-00181
Submitted October 4, 2002.
October 28, 2002.
In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated November 30, 2001, which granted the defendant's motion for summary judgment dismissing the complaint.
William T. O'Halloran, Staten Island, N.Y., for appellant.
Rivkin Radler, LLP, Uniondale, N.Y. (Norman L. Tolle, Harris J. Zakarin, and Cheryl Korman of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
It is well settled that compliance with a notice of claim provision in an insurance policy is a condition precedent to an insurer's liability under the policy (see Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436; see also Roche v. G.E. Capital Life Assur. Co. of N.Y., 281 A.D.2d 932; Sayed v. Macari, 296 A.D.2d 396). Moreover, "absent a valid excuse, a failure to satisfy the notice requirement vitiates the policy" (Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., supra at 440).
Here, the disability policy which the plaintiff purchased from the defendant required "[w]ritten notice of claim * * * within 60 days after the occurrence or commencement of any loss covered [under the] policy." In support of its motion for summary judgment, the defendant demonstrated that the plaintiff did not provide notice of claim until more than five years after the occurrence of his disability. In opposition, the plaintiff failed to demonstrate any valid excuse for the delay or to otherwise raise a material issue of fact that would require a trial of the action.
Accordingly, under these circumstances, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint (see Gresham v. American Gen. Life Ins. Co. of N.Y., 135 A.D.2d 1121; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320).
SANTUCCI, J.P., SCHMIDT, TOWNES and MASTRO, JJ., concur.