Opinion
October 9, 1990
Appeal from the Supreme Court, Nassau County (Brucia, J.).
Ordered that the judgment appealed from is modified, by adding thereto a provision declaring that the defendant is not required to provide underinsurance coverage to the plaintiff; as so modified, the judgment is affirmed, with costs to the defendant.
On June 30, 1986, the plaintiff's son, Brian Schiebel, a minor, was struck and injured by an automobile driven by Robert Chafer and owned by Delores Chafer while riding a bicycle. On July 9, 1986, the plaintiff's attorney notified the Chafer's insurer, Allstate Insurance Co., of their claim for damages and, more than six months later, on January 28, 1987, the plaintiff's attorney learned that the offending vehicle's liability insurance coverage was limited to $10,000 per person, and $20,000 per incident. This information was confirmed by letter from Allstate on February 12, 1987. Thereafter on February 25, 1987, the plaintiff's attorney informed the defendant insurer, Nationwide Mutual Insurance Company, that he was claiming underinsurance coverage pursuant to his policy. The defendant argues that the notice was untimely, as it was given more than six months after the accident, i.e., more than three months beyond the 90-day period provided in the policy. We agree.
As we have recently stated, an insured must give notice to his or her insurer within the time limit provided in the policy or within a reasonable time under all the circumstances (see, Matter of Merchants Mut. Ins. Co. v. Hurban, 160 A.D.2d 873; see also, Security Mut. Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436; Eveready Ins. Co. v. Saunders, 149 A.D.2d 456). Where, as here the claimant offers no valid excuse for the more than seven-month delay in asserting the claim for coverage, the plaintiff's notice was untimely as a matter of law, and the failure vitiates coverage (see, Security Mut. Ins. Co. v. Acker-Fitzsimons Corp., supra; Matter of Nassau Ins. Co. v Doyle, 114 A.D.2d 899).
In light of this determination, it is unnecessary to consider the plaintiff's remaining contentions. Bracken, J.P., Kunzeman, Eiber and Harwood, JJ., concur.