ST NICHOLAS CATHEDRAL OF RUSSIAN ORTHODOX CHURCH IN NORTH AMERICA v. JSC (2007)

Order, Supreme Court, New York County (Herman Cahn, J.), entered June 26, 2006, which granted the motion of defendant Travelers Property Casualty Insurance Company (Travelers) to confirm the report of the Special Referee, and denied plaintiff's cross motion to vacate the report, unanimously affirmed, without costs.

Plaintiff seeks a declaration that Travelers is obligated to defend and indemnify it in connection with a pending action arising out of an accident that occurred on the sidewalk adjacent to its property on October 14, 2003.   Despite a notice of occurrence provision in its insurance policy, plaintiff did not notify Travelers about the accident until May 10, 2004, after receiving notice of a lawsuit from the injured person.

The evidence adduced before the Special Referee established that plaintiff was immediately aware of the accident, which occurred in front of its property while its contractor was performing work on its behalf, and that it was aware that a person was injured and was removed from the scene in an ambulance.   Moreover, plaintiff discussed the accident internally and with others, and was familiar with the insurance policy's requirement to provide notice of an occurrence “as soon as practicable.”   Under the circumstances, plaintiff failed to establish the reasonableness of its belief that no claim would be asserted against it and hence of its seven-month delay in providing notice to Travelers (see SSBSS Realty Corp. v. Public Serv. Mut. Ins. Co., 253 A.D.2d 583, 584, 677 N.Y.S.2d 136 [1998] ).   We are bound by the holding in Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 N.Y.3d 742, 800 N.Y.S.2d 521, 833 N.E.2d 1196 (2005) that the insurer need not demonstrate prejudice in a question of late notice, and therefore, the claim is barred by the terms of the policy.

We have considered plaintiff's remaining arguments and find them unavailing.