Summary
In Wainco, the policy at issue provided that failure to provide notice would not affect the rights of the insured "unless the insurer shall be actually prejudiced by such failure."
Summary of this case from Emigrant Bank v. Commonwealth Land Title Ins. Co.Opinion
September 11, 1995
Appeal from the Supreme Court, Westchester County (Fredman, J.).
Ordered that the order is affirmed, with costs.
The subject title insurance policy provided that in the event the insured failed to "promptly notify" the insurer of "any lien or encumbrance insured against", the insurer's liability would terminate, "provided that [the] failure to notify shall in no case prejudice the claim of any insured unless the [insurer] shall be actually prejudiced by such failure". It is undisputed that the plaintiff mortgagee did not notify the defendant insurer of a tax lien foreclosure proceeding against the mortgaged premises until the plaintiff had unsuccessfully appealed from a judgment of the Supreme Court, Orange County, which was in favor of the City of Newburgh. Thus, notification did not occur until approximately 20 months after the plaintiff insured claims that it first learned of the proceeding. By depriving the defendant of the opportunity to participate in the tax lien proceeding in any way, the plaintiff's failure to give notice actually prejudiced the defendant (see, Hovdestad v Interboro Mut. Indem. Ins. Co., 135 A.D.2d 783, 784). Because the plaintiff's submissions were insufficient to raise an issue of fact in this regard, the Supreme Court properly dismissed the complaint (see, Zuckerman v City of New York, 49 N.Y.2d 557, 562). Copertino, J.P., Santucci, Altman and Friedmann, JJ., concur.