426 428 WEST 46TH ST OWNERS INC v. GREATER NEW YORK MUTUAL INSURANCE COMPANY (2005)

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 12, 2004, which denied defendant's motion to dismiss plaintiff's declaratory judgment action challenging defendant-insurer's disclaimer of coverage on the ground that plaintiffs' notice of claim was untimely, unanimously affirmed, with costs.

There was uncontradicted evidence presented by plaintiffs that although they knew on August 27, 2002 that their tenant had been found lying incapacitated inside her apartment and was brought by ambulance to the hospital, they lacked knowledge that she had sustained severe injuries from falling down stairs inside her apartment, and that the tenant provided no information which would lead plaintiffs to believe she held them responsible for her condition.   In these circumstances, the IAS court properly concluded that defendant had not shown that plaintiffs' delay in notifying defendant of the incident until June 18, 2003, shortly after the tenant commenced the underlying action, was unreasonable as a matter of law (Argentina v. Otsego Mut. Fire Ins. Co., 86 N.Y.2d 748, 631 N.Y.S.2d 125, 655 N.E.2d 166 [1995] ).   Furthermore, taking all the circumstances into consideration, plaintiffs' apparent failure to conduct any inquiry into the tenant's condition did not render their excuse unreasonable as a matter of law.