SERRAVILLO v. STERLING INSURANCE COMPANY (1999)

In an action to collect the proceeds of a homeowner's insurance policy issued by the defendant, the plaintiff appeals from an order of the Supreme Court, Kings County (Belen, J.), entered May 8, 1998, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 It is well established that the failure to comply with provisions of an insurance policy requiring timely notice of an accident vitiates the contract, both as to the insured and to one injured or damaged by his acts (see, Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440, 340 N.Y.S.2d 902, 293 N.E.2d 76;  Deso v. London & Lancashire Ind. Co., 3 N.Y.2d 127, 129, 164 N.Y.S.2d 689, 143 N.E.2d 889;  Jenkins v. Burgos, 99 A.D.2d 217, 219, 472 N.Y.S.2d 373).   The policy provision which required the insured to “promptly give * * * notice” to the defendant insurance carrier or its agent, required the insured to give notice within a reasonable time under the circumstances (see, White v. City of New York, 81 N.Y.2d 955, 957, 598 N.Y.S.2d 759, 615 N.E.2d 216;  Unigard Sec. Ins. Co. v. North Riv. Ins. Co., 79 N.Y.2d 576, 581, 584 N.Y.S.2d 290, 594 N.E.2d 571;   Merchants Mut. Ins. Co. v. Hoffman, 56 N.Y.2d 799, 801, 452 N.Y.S.2d 398, 437 N.E.2d 1155;  Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., supra).   Furthermore, while Insurance Law § 3420(a)(3) provides, in pertinent part, that written notice by or on behalf of the injured party shall be deemed notice to the carrier, the injured party has the burden of proving that she or her counsel acted diligently in attempting to ascertain the identity of the carrier and, thereafter expeditiously notified the carrier (see, Government Employees Ins. Co. v. Blecker, 150 A.D.2d 428, 541 N.Y.S.2d 39;  Eveready Ins. Co. v. Chavis, 150 A.D.2d 332, 540 N.Y.S.2d 860;  National Grange Mut. Ins. Co. v. Diaz, 111 A.D.2d 700, 701, 490 N.Y.S.2d 516).   At bar, the nine-month delay in giving notice of the accident and the five-month delay in giving notice of the underlying action, in the absence of excuse or mitigating factors, and in light of the close family relationship between the injured plaintiff and the insureds, was unreasonable as a matter of law (see, Rodriguez v. Liberty Mut. Ins. Co., 214 A.D.2d 366, 625 N.Y.S.2d 489;   Government Employees Ins. Co. v. Blecker, supra;  Eveready Ins. Co. v. Chavis, supra).

 Furthermore, the insureds' allegation that they had provided notice of the accident and the underlying personal injury action to their insurance broker cannot be treated as notice to the carrier, since the broker is deemed to be the agent of the insured and not the carrier (see, Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., supra, at 442, n. 3, 340 N.Y.S.2d 902, 293 N.E.2d 76;  Shaw Temple A.M.E. Zion Church v. Mount Vernon Fire Ins. Co., 199 A.D.2d 374, 376, 605 N.Y.S.2d 370;  Kamyr, Inc. v. St. Paul Surplus Lines Ins. Co., 152 A.D.2d 62, 65, 547 N.Y.S.2d 964).   There is no evidence of action by the carrier, or facts from which it may be inferred, to support the conclusion that the broker had a general authority to represent the carrier (see, Incorporated Vil. of Pleasantville v. Calvert Ins. Co., 204 A.D.2d 689, 612 N.Y.S.2d 441;  Kamyr, Inc. v. St. Paul Surplus Lines Ins. Co., supra).

MEMORANDUM BY THE COURT.