GOODWIN BOWLER ASSOCIATES LTD v. EASTERN MUTUAL INSURANCE COMPANY (1999)

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

GOODWIN BOWLER ASSOCIATES, LTD., et al., Plaintiffs-Appellants, v. EASTERN MUTUAL INSURANCE COMPANY, Defendant-Respondent.

Decided: March 23, 1999

ELLERIN, P.J., LERNER, ANDRIAS and SAXE, JJ.

Dennis T. D'Antonio, for Plaintiffs-Appellants. Mark W. Blanchfield, for Defendant-Respondent.

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about January 7, 1998, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly declined to credit assertions in plaintiffs' affidavit in opposition to the motion as to when they first gave defendant insurer notice of their claim in light of detailed contradictory assertions in plaintiffs' examination under oath (see, Califano v. Campaniello, 243 A.D.2d 528, 529-530, 663 N.Y.S.2d 102). Having found that plaintiffs delayed two months in submitting their notice of claim, the court then properly concluded that plaintiffs' delay was unreasonable as a matter of law, in view of plaintiffs' misguided but knowing “election to look to one source rather than another for reimbursement” (see, Power Auth. of New York v. Westinghouse Elec. Corp., 117 A.D.2d 336, 341, 502 N.Y.S.2d 420).

MEMORANDUM DECISION.

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