MEILUTIS v. COMMERCIAL UNION INSURANCE COMPANY (1998)

Supreme Court, Appellate Division, Fourth Department, New York.

Judy A. MEILUTIS, Appellant-respondent, v. COMMERCIAL UNION INSURANCE COMPANY, Respondent-Appellant.

Decided: June 10, 1998

Before GREEN, J.P., and PINE, HAYES, CALLAHAN and FALLON, JJ.

Chamberlain, D'Amanda by Alexander Korotkin (Douglas Jones, of counsel), Rochester, for Plaintiff-Appellant-Respondent. Rodgers, Menard & Coppola, LLP (Michael Menard, of counsel), Buffalo, for Defendant-Respondent-Appellant.

Supreme Court properly denied defendant's motion for summary judgment because there is an issue of fact whether defendant's delay of one month in disclaiming coverage was reasonable (see, Utica Fire Ins. Co. of Oneida County v. Spagnolo, 221 A.D.2d 921, 634 N.Y.S.2d 296; see also, Wilczak v. Ruda & Capozzi, 203 A.D.2d 944, 945, 611 N.Y.S.2d 73).

The court also properly denied plaintiff's cross motion for summary judgment. We agree with plaintiff that defendant waived the defense of breach of conditions precedent by failing to deny with sufficient particularity the allegation in the complaint that plaintiff complied with the condition precedent of providing timely notice of the occurrence to defendant (see, Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 N.Y.2d 201, 218, 481 N.Y.S.2d 60, 470 N.E.2d 858). It does not follow, however, that the waiver renders defendant's disclaimer of coverage ineffective as a matter of law. Defendant has also disclaimed coverage based upon a policy exclusion.

Order unanimously affirmed without costs.

MEMORANDUM:

Was this helpful?

Why was this helpful?

Easy to understand

Solved my problem

Other

Why was this not helpful?

Missing the information I need

Too complicated / too many steps

Out of date

Other

Thank you for your feedback!

Trusted by Consumers. Recognized by AI.

As the largest network of trusted legal brands, we help firms build authority across the platforms consumers and AI systems rely on most. Our network helps attorneys strengthen visibility, credibility, and preference where legal decisions begin.

Explore the Network