GUTLOVE SHIRVINT INC v. CONTINENTAL INSURANCE COMPANY (1999)

Order, Supreme Court, New York County (Ira Gammerman, J.), entered March 20, 1998, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 The waiver alleged by plaintiff was properly rejected, since there was no proof of defendant insurer's knowledge of the right it is alleged to have waived (see, Sargent v. Halsey, 42 A.D.2d 375, 380, 348 N.Y.S.2d 160;  see also, Beacon Terminal Corp. v. Chemprene, Inc., 75 A.D.2d 350, 355-356, 429 N.Y.S.2d 715, lv. denied 51 N.Y.2d 706, 433 N.Y.S.2d 1026, 413 N.E.2d 369).   Moreover, “[i]nasmuch as the insured failed to demonstrate actual prejudice by virtue of the insurer's conduct, the insurer should not ․ be estopped from disclaiming [additional] coverage” (Corcoran v. Abbott Sommers, Inc., 143 A.D.2d 874, 876, 533 N.Y.S.2d 511).   Finally, defendant's delay in paying business interruption benefits, attributable to its need to complete its investigation of the claim, was not unreasonably protracted and was adequately justified under the circumstances (see, Stabules v. Aetna Life & Cas. Co., 226 A.D.2d 138, 139, 639 N.Y.S.2d 824).

MEMORANDUM DECISION.