Opinion
2012-02-21
UTICA FIRST INSURANCE COMPANY, appellant, v. Debbie VAZQUEZ, et al., respondents.
Farber Brocks & Zane, LLP, Mineola, N.Y. (Andrew J. Mihalick and Audra S. Zane of counsel), for appellant. Paul L. Brozdowski, LLC, Cortlandt Manor, N.Y., for respondent Jose Sanchez.
Farber Brocks & Zane, LLP, Mineola, N.Y. (Andrew J. Mihalick and Audra S. Zane of counsel), for appellant. Paul L. Brozdowski, LLC, Cortlandt Manor, N.Y., for respondent Jose Sanchez.
REINALDO E. RIVERA, J.P., RANDALL T. ENG, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.
In an action for a judgment declaring, inter alia, that the plaintiff is not obligated to defend or indemnify the defendants Debbie Vazquez, Debbie Vazquez, doing business as Debbie Construction, Debbie Construction, and Edgardo Almenden in an underlying personal injury action entitled Sanchez v. Vazquez, pending in the Connecticut Superior Court, Judicial District of Fairfield, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Orange County (Ritter, J.), dated July 29, 2010, which denied its motion for summary judgment declaring that it is not obligated to defend or indemnify those defendants in the underlying action, granted the cross motion of the defendants Debbie Vazquez, Debbie Vazquez, doing business as Debbie Construction, Debbie Construction, and Edgardo Almenden for summary judgment declaring that it is so obligated, and declared that it is obligated to defend and indemnify the defendants Debbie Vazquez, Debbie Vazquez, doing business as Debbie Construction, Debbie Construction, and Edgardo Almenden in the underlying action.
ORDERED that the order and judgment is modified, on the law, (1) by deleting the provision thereof granting the cross motion of the defendants Debbie Vazquez, Debbie Vazquez, doing business as Debbie Construction, Debbie Construction, and Edgardo Almenden for summary judgment declaring that the plaintiff is obligated to defend and indemnify them in the underlying action , and substituting therefor a provision denying the cross motion, and (2) by deleting the provision thereof declaring that the plaintiff is obligated to defend and indemnify the defendants Debbie Vazquez, Debbie Vazquez, doing business as Debbie Construction, Debbie Construction, and Edgardo Almenden in the underlying action; as so modified, the order and judgment is affirmed, without costs or disbursements.
“ ‘Where an insurance policy requires that notice of an occurrence be given promptly, notice must be given within a reasonable time in view of all of the facts and circumstances' ” ( 120 Whitehall Realty Assoc., LLC v. Hermitage Ins. Co., 40 A.D.3d 719, 721, 835 N.Y.S.2d 715, quoting Eagle Ins. Co. v. Zuckerman, 301 A.D.2d 493, 495, 753 N.Y.S.2d 128). Absent a valid excuse for a delay in furnishing notice, failure to satisfy the notice requirement vitiates coverage ( 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; Security Mut. Ins. Co. of N.Y. v. Acker–Fitzsimons Corp., 31 N.Y.2d 436, 441, 340 N.Y.S.2d 902, 293 N.E.2d 76; Donovan v. Empire Ins. Group, 49 A.D.3d 589, 590, 856 N.Y.S.2d 139). However, there may be circumstances, such as lack of knowledge that an accident has occurred, or a reasonable belief in nonliability, that will excuse a delay in giving notice ( see White v. City of New York, 81 N.Y.2d 955, 957, 598 N.Y.S.2d 759, 615 N.E.2d 216; Felix v. Pinewood Bldrs., Inc., 30 A.D.3d 459, 461, 818 N.Y.S.2d 119). The insured has the burden of showing the reasonableness of such excuse ( see Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 N.Y.3d at 744, 800 N.Y.S.2d 521, 833 N.E.2d 1196; White v. City of New York, 81 N.Y.2d at 957, 598 N.Y.S.2d 759, 615 N.E.2d 216; Security Mut. Ins. Co. of N.Y. v. Acker–Fitzsimons Corp., 31 N.Y.2d at 441, 340 N.Y.S.2d 902, 293 N.E.2d 76).
Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by demonstrating that it was not provided with notice of the subject accident until almost two years after it had occurred ( see Tower Ins. Co. of N.Y. v. Alvarado, 84 A.D.3d 1354, 1355–1356, 923 N.Y.S.2d 717; Hanover Ins. Co. v. Prakin, 81 A.D.3d 778, 780, 916 N.Y.S.2d 615; Lobosco v. Best Buy, Inc., 80 A.D.3d 728, 731–732, 915 N.Y.S.2d 305; Ponok Realty Corp. v. United Natl. Specialty Ins. Co., 69 A.D.3d 596, 597, 893 N.Y.S.2d 125). However, in opposition to the plaintiff's summary judgment motion, the defendants Debbie Vazquez, Debbie Vazquez, doing business as Debbie Construction, and Debbie Construction (hereinafter the Debbie Construction defendants) and the defendant Edgardo Almenden raised a triable issue of fact as to whether the delay in giving notice was reasonably based on Debbie Construction principal Debbie Vazquez's lack of knowledge of the accident ( cf. Security Mut. Ins. Co. of N.Y. v. Acker–Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76), or on a good faith belief in the nonliability of her employee, Almenden ( see Tower Ins. Co. of N.Y. v. Alvarado, 84 A.D.3d at 1355–1356, 923 N.Y.S.2d 717; 25th Ave., LLC v. Delos Ins. Co., 84 A.D.3d 781, 783–784, 922 N.Y.S.2d 204; North Country Ins. Co. v. Jandreau, 50 A.D.3d 1429, 1430–1431, 856 N.Y.S.2d 294; Klersy Bldg. Corp. v. Harleysville Worcester Ins. Co., 36 A.D.3d 1117, 1119, 828 N.Y.S.2d 661; G.L.G. Contr. Corp. v. Aetna Cas. & Sur. Co., 215 A.D.2d 821, 822, 626 N.Y.S.2d 307; Triantafillou v. Colonial Coop. Ins. Co., 178 A.D.2d 925, 926–927, 578 N.Y.S.2d 792). Accordingly, the Supreme Court correctly denied the plaintiff's motion for summary judgment.
Since, as noted above, there is a triable issue of fact as to whether the delay in giving notice was reasonable, the Supreme Court erred in granting the cross motion of the Debbie Construction defendants and Almenden for summary judgment, and in issuing a judgment declaring that the plaintiff is obligated to defend and indemnify those defendants in the underlying action.
The parties' remaining contentions are without merit.