DELIVERY SYSTEMS INC v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA (1999)

In an action for a judgment declaring, inter alia, that the defendants are required to indemnify the plaintiff with respect to an accident which occurred on October 19, 1994, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winick, J.), dated April 28, 1998, which denied the plaintiff's motion for summary judgment on the complaint.

ORDERED that the order is affirmed, with costs.

 The Supreme Court properly determined that an issue of fact exists as to whether the defendant National Union Fire Insurance Company of Pittsburgh, PA (hereinafter National Union), was promptly notified of the incident or the lawsuit pursuant to the provisions of the policy (see, Winstead v. Uniondale Union Free School District, 201 A.D.2d 721, 608 N.Y.S.2d 487;  White v. City of New York, 81 N.Y.2d 955, 598 N.Y.S.2d 759, 615 N.E.2d 216).   In addition, an issue of fact exists as to whether National Union held out the defendant Albiez Insurance Agency as its agent.   While an insurance broker is the agent of the insured and “notice to the ordinary insurance broker is not notice to the liability carrier” (Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 442, n. 3, 340 N.Y.S.2d 902, 293 N.E.2d 76;  see, Kamyr, Inc. v. St. Paul Surplus Lines Ins. Co., 152 A.D.2d 62, 65, 547 N.Y.S.2d 964), a broker will be held to have acted as the insurer's agent where “[t]here [is] some evidence of * * * action on the insurer's part, or facts from which a general authority to represent the insurer may be inferred” (Kamyr, Inc. v. St. Paul Surplus Lines Ins. Co., supra;  see, Matco Prods. v. Boston Old Colony Ins. Co., 104 A.D.2d 793, 796, 480 N.Y.S.2d 134;  see also, Ford v. Unity Hosp., 32 N.Y.2d 464, 473, 346 N.Y.S.2d 238, 299 N.E.2d 659;  Jet Setting Serv. Corp. v. Toomey, 91 A.D.2d 431, 459 N.Y.S.2d 751;  D.C.G. Trucking Corp. v. Zurich Ins. Co., 81 A.D.2d 990, 991, 440 N.Y.S.2d 74;  Price v. Lawrence-Van Voast, Inc., 58 A.D.2d 727, 396 N.Y.S.2d 296).

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.