AVILES v. 938 SCY (2000)

Supreme Court properly granted judgment in favor of plaintiff declaring that Dryden Mutual Insurance Company (defendant) is obligated to defend and indemnify defendant 938 SCY Limited, d/b/a Friends & Players (SCY), in the underlying personal injury action commenced by plaintiff against SCY. “On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses” (Claridge Gardens v. Menotti, 160 A.D.2d 544, 544-545, 554 N.Y.S.2d 193;  see, Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369, rearg. denied 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298).   Plaintiff presented evidence that the owners of SCY found no defects in the premises that contributed to plaintiff's injuries and that the owners were told that plaintiff suffered from a history of seizures.   Thus, a fair interpretation of the evidence supports the court's determination that the failure of SCY to provide timely notice of the potential claim was excused by the good faith belief of SCY that it was not liable for plaintiff's injuries, which belief was reasonable under the circumstances (see, 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;  see also, D'Aloia v. Travelers Ins. Co., 85 N.Y.2d 825, 826, 623 N.Y.S.2d 837, 647 N.E.2d 1345, rearg. denied 85 N.Y.2d 968, 629 N.Y.S.2d 727, 653 N.E.2d 623;  White v. City of New York, 81 N.Y.2d 955, 957, 598 N.Y.S.2d 759, 615 N.E.2d 216).

Judgment unanimously affirmed without costs.

MEMORANDUM: