EVANGELOS CAR WASH INC v. UTICA FIRST INSURANCE COMPANY (2007)

In an action for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying personal injury action entitled Reyes v. Evangelos Car Wash, Inc., commenced in the Supreme Court, Richmond County, under Index No. 11635/2003, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Richmond County (J. McMahon, J.), entered August 7, 2006, which denied its motion for summary judgment, granted the plaintiff's cross motion for summary judgment, and declared that the defendant is obligated to defend and indemnify the plaintiff in the underlying personal injury action.

ORDERED that the order and judgment is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and it is declared that the defendant is not obligated to defend and indemnify the plaintiff in the underlying personal injury action.

 When an insurance policy requires that notice of an occurrence or action be given promptly, notice must be given within a reasonable time in view of all the circumstances (see Gershow Recycling Corp. v. Transcontinental Ins. Co., 22 A.D.3d 460, 461, 801 N.Y.S.2d 832).   In the instant case, the plaintiff knew of the accident, at the latest, on December 2, 2003.   The plaintiff's delay until March 16, 2004, in giving notice of the underlying action to the defendant insurance company, in the absence of an excuse or mitigating factors, was unreasonable as a matter of law (see Gershow Recycling Corp. v. Transcontinental Ins. Co., 22 A.D.3d at 462, 801 N.Y.S.2d 832;  Pile Found. Constr. Co. v. Investors Ins. Co. of Am., 2 A.D.3d 611, 612-613, 769 N.Y.S.2d 290;  Serravillo v. Sterling Ins. Co., 261 A.D.2d 384, 385, 689 N.Y.S.2d 521;  SSBSS Realty Corp. v. Public Serv. Mut. Ins. Co., 253 A.D.2d 583, 585, 677 N.Y.S.2d 136).   Furthermore, contrary to the plaintiff's contention, the defendant specifically advised the plaintiff in its disclaimer letter that its notice of claim was untimely (see Maldonado v. C.L.-M.I. Props., Inc., 39 A.D.3d 822, 823, 835 N.Y.S.2d 335;  Matter of State Farm Mut. Auto. Ins. Co. v. Cooper, 303 A.D.2d 414, 756 N.Y.S.2d 87;  Abreu v. Huang, 300 A.D.2d 420, 420-421, 751 N.Y.S.2d 583). Accordingly, the defendant properly disclaimed coverage, and the Supreme Court erred in denying the defendant's motion for summary judgment and granting the plaintiff's cross motion for summary judgment.