TREMAINE v. << (2000)

 Respondent, a passenger in a motor vehicle owned by the State of New York (State), was involved in an accident on July 11, 1994.   She served notice of an underinsurance claim on petitioner, her insurer, 2 1/212 years later, in December 1996.   Respondent thereafter filed an uninsured claim under the State insurance policy and, after settling with the State for its policy limit, served a demand for arbitration of her underinsurance claim on petitioner.   Supreme Court erred in denying the application to stay arbitration.   Respondent's insurance policy required that she provide notice of an underinsurance claim “[a]s soon as practicable”, which the Court of Appeals has defined in the underinsurance context as “with reasonable promptness after the insured knew or should reasonably have known that the tortfeasor was underinsured” (Matter of Metropolitan Prop. & Cas. Ins. Co. v. Mancuso, 93 N.Y.2d 487, 495, 693 N.Y.S.2d 81, 715 N.E.2d 107).   Delay in giving notice may be excused, but “the burden of establishing a reasonable excuse for the delay is upon the insured” (Matter of Travelers Ins. Co. [DeLosh], 249 A.D.2d 924, 925, 672 N.Y.S.2d 219).   Here, respondent offered no excuse for the 2 1/212-year delay after the accident, and we conclude that the unexplained delay of 2 1/212 years was unreasonable as a matter of law (see, Matter of Travelers Ins. Co. [DeLosh], supra;  see also, Unwin v. New York Cent. Mut. Fire Ins. Co., 268 A.D.2d 669, 700 N.Y.S.2d 580).

Order unanimously reversed on the law without costs and application granted.

MEMORANDUM: