BENSON v. << (2000)

Contrary to petitioner's contention, Supreme Court's determination that respondent notified petitioner of her supplemental uninsured motorist (SUM) claim “as soon as practicable” is supported by the record.   Respondent's medical condition was diagnosed at the time of the accident as muscle spasms of the back.   That diagnosis continued for almost a year, at which time respondent's physician noted that respondent may not be able to return to her employment as a nurse's aide.   When it became apparent that the injury was more significant than originally determined, respondent's attorney promptly contacted the tortfeasor's insurer, negotiated a settlement for the bodily injury coverage limits of that policy and immediately notified petitioner that respondent was making a claim for SUM benefits.   We conclude that, under the circumstances, respondent gave “notice with reasonable promptness after [she] 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;  see also, Matter of Nationwide Ins. Co. [Brown-Young], 265 A.D.2d 918, 695 N.Y.S.2d 823;  cf., Matter of Travelers Ins. Co. [DeLosh], 249 A.D.2d 924, 925, 672 N.Y.S.2d 219).

Order unanimously affirmed with costs.

MEMORANDUM: