Opinion
05-24-2017
Deoraj RAMLOCHAN, as administrator of the estate of Karishma Ramlochan, deceased, and Deoraj Ramlochan, individually, appellant, v. SCOTTSDALE INSURANCE COMPANY, respondent.
Robert F. Danzi, Westbury, NY (Christine Coscia of counsel), for appellant. Carroll McNulty & Kull, LLC, New York, NY (Ann Odelson of counsel), for respondent.
Robert F. Danzi, Westbury, NY (Christine Coscia of counsel), for appellant.
Carroll McNulty & Kull, LLC, New York, NY (Ann Odelson of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and BETSY BARROS, JJ.
In an action pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against the defendant's insured, and for a judgment declaring that the defendant is obligated to satisfy the judgment, the plaintiff appeals from an order of the Supreme Court, Queens County (Brathwaite Nelson, J.), dated April 6, 2015, which denied his motion for summary judgment on the complaint and granted the defendant's cross motion for summary judgment declaring that it has no obligation to satisfy the judgment.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant has no duty to satisfy the judgment in the underlying action entitled Ramlochan v. Sweet P. Home Care, Inc., commenced in that court under Index No. 24016/09.
Where an insurance policy requires that notice of an occurrence be given "as soon as practicable," notice must be given within a reasonable time in view of all of the circumstances (see Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 N.Y.3d 742, 743, 800 N.Y.S.2d 521, 833 N.E.2d 1196 ; Aspen Ins. UK Ltd. v. Nieto, 137 A.D.3d 720, 720, 27 N.Y.S.3d 52 ; Ponok Realty Corp. v. United Natl. Specialty Ins. Co., 69 A.D.3d 596, 597, 893 N.Y.S.2d 125 ; 120 Whitehall Realty Assoc., LLC v. Hermitage Ins. Co., 40 A.D.3d 719, 721, 835 N.Y.S.2d 715 ). "The insured's failure to satisfy the notice requirement constitutes ‘a failure to comply with a condition precedent which, as a matter of law, vitiates the contract’ " (Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 N.Y.3d at 743, 800 N.Y.S.2d 521, 833 N.E.2d 1196, quoting Argo Corp. v. Greater N.Y. Mut. Ins. Co., 4 N.Y.3d 332, 339, 794 N.Y.S.2d 704, 827 N.E.2d 762 ; see Sputnik Rest. Corp. v. United Natl. Ins. Co., 62 A.D.3d 689, 689, 878 N.Y.S.2d 428 ). "However, circumstances may exist that will excuse or explain the insured's delay in giving notice, such as a reasonable belief in nonliability" (Genova v. Regal Mar. Indus., 309 A.D.2d 733, 734, 765 N.Y.S.2d 266 ; see Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 N.Y.3d at 743–744, 800 N.Y.S.2d 521, 833 N.E.2d 1196 ; Ponok Realty Corp. v. United Natl. Specialty Ins. Co., 69 A.D.3d at 597, 893 N.Y.S.2d 125 ; C.C.R. Realty of Dutchess v. New York Cent. Mut. Fire Ins. Co., 1 A.D.3d 304, 305, 766 N.Y.S.2d 856 ). It is the insured's burden to demonstrate the reasonableness of the excuse (see Bigman Bros., Inc. v. QBE Ins. Corp., 73 A.D.3d 1110, 1111, 904 N.Y.S.2d 439 ; Ponok Realty Corp. v. United Natl. Specialty Ins. Co., 69 A.D.3d at 597, 893 N.Y.S.2d 125 ; Genova v. Regal Mar. Indus., 309 A.D.2d at 734, 765 N.Y.S.2d 266 ).
Here, the defendant Scottsdale Insurance Company (hereinafter Scottsdale) established its prima facie entitlement to judgment as a matter of law. Scottsdale demonstrated that its insured knew of the occurrence immediately and received a letter of representation from the plaintiff's attorney in June 2008, but waited until September 25, 2009, to notify Scottsdale (see Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 N.Y.3d at 743, 800 N.Y.S.2d 521, 833 N.E.2d 1196 ; Guideone Ins. Co. v. Darkei Noam Rabbinical Coll., 120 A.D.3d 625, 627, 992 N.Y.S.2d 66 ). Since the subject policy was issued prior to the amendment to Insurance Law § 3420, Scottsdale was not required to show that it was prejudiced by the failure to give timely notice in order to satisfy its prima facie burden (see Briggs Ave. LLC v. Insurance Corp. of Hannover, 11 N.Y.3d 377, 381, 870 N.Y.S.2d 841, 899 N.E.2d 947 ; Kraemer Bldg. Corp. v. Scottsdale Ins. Co., 136 A.D.3d 1205, 1207, 25 N.Y.S.3d 718 ; AH Prop., LLC v. New Hampshire Ins. Co., 95 A.D.3d 1243, 1245, 945 N.Y.S.2d 391 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the insured's delay in notifying Scottsdale was reasonable based upon its good faith belief in nonliability (see Donovan v. Empire Ins. Group, 49 A.D.3d 589, 591, 856 N.Y.S.2d 139 ).
Moreover, contrary to the plaintiff's contention, Scottsdale demonstrated, prima facie, that its delay in disclaiming coverage was reasonable under the circumstances. While Insurance Law § 3420(d)(2) requires an insurer to give written notice of a disclaimer of coverage "as soon as is reasonably possible" (Insurance Law § 3420[d][2] ; see Guideone Ins. Co. v. Darkei Noam Rabbinical Coll., 120 A.D.3d at 627, 992 N.Y.S.2d 66 ), an investigation into issues affecting the decision whether to disclaim may excuse a delay (see Magistro v. Buttered Bagel, Inc., 79 A.D.3d 822, 824–825, 914 N.Y.S.2d 192 ; Hermitage Ins. Co. v. Arm-ing, Inc., 46 A.D.3d 620, 621, 847 N.Y.S.2d 628 ; Tully Constr. Co., Inc. v. TIG Ins. Co., 43 A.D.3d 1150, 1152, 842 N.Y.S.2d 528 ). Here, Scottsdale demonstrated that, under the circumstances of this case, its delay in issuing the disclaimer of coverage was reasonably related to the completion of a necessary, thorough, and diligent investigation into issues affecting its decision to disclaim (see Magistro v. Buttered Bagel, Inc., 79 A.D.3d at 824–825, 914 N.Y.S.2d 192 ; Hermitage Ins. Co. v. Arm-ing, Inc., 46 A.D.3d at 621, 847 N.Y.S.2d 628 ; Tully Constr. Co., Inc. v. TIG Ins. Co., 43 A.D.3d at 1153, 842 N.Y.S.2d 528 ). In opposition, the plaintiff failed to raise a triable issue of fact as to the timeliness of the disclaimer. Thus, contrary to the plaintiff's contention, the Supreme Court properly determined that the disclaimer of coverage issued by Scottsdale was timely.Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment and granted Scottsdale's cross motion for summary judgment. Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Queens County, for the entry of a judgment declaring that Scottsdale has no duty to satisfy the judgment in the underlying action, entitled Ramlochan v. Sweet P. Home Care, Inc., commenced in that court under Index No. 24016/09 (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670 ).