Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
THEODORE LUKRALLE, Sr., Respondent, v. DURSO SUPERMARKETS, INC., d/b/a Key Food, Defendant, Public Service Mutual Insurance Company, Appellant.
In an action for a judgment declaring that the defendant Public Service Mutual Insurance Company has a duty to defend and indemnify the defendant Durso Supermarkets, Inc., d/b/a Key Food in an action to recover damages arising out of an accident that occurred on June 19, 1991, the defendant Public Service Mutual Insurance Company appeals from an order of the Supreme Court, Nassau County (Roberto, J.), dated April 25, 1996, which denied its motion for summary judgment.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that Public Service Mutual Insurance Company is not obligated to defend or indemnify the defendant Durso Supermarkets, Inc., d/b/a Key Food in connection with the underlying action.
The plaintiff slipped and fell in premises maintained by the defendant Durso Supermarkets, Inc. d/b/a/ Key Food (hereinafter Durso) on June 19, 1991. Durso was insured by the defendant insurance carrier Public Service Mutual Insurance Company (hereinafter PSM) under a general liability policy which, inter alia, required Durso to notify PSM “as soon as practicable” of any “ ‘occurrence’ * * * which may result in a claim”. The policy defined an occurrence as an accident. PSM established that Durso possessed contemporaneous knowledge of the June 19, 1991, accident but failed to notify PSM until November 1991 when Durso forwarded a copy of the summons and complaint in the underlying tort action. PSM disclaimed coverage and the plaintiff commenced the instant declaratory judgment action.
It is well settled that where an insurance policy requires an insured to provide notice “as soon as practicable” of an occurrence, such notice must be provided within a reasonable time under all the circumstances (see, Deso v. London & Lancashire Ind. Co. of America, 3 N.Y.2d 127, 129, 164 N.Y.S.2d 689, 143 N.E.2d 889). Providing the required notice is a condition to the insurance carrier's liability (Rushing v. Commercial Casualty Ins. Co., 251 N.Y. 302, 167 N.E. 450), and absent a valid excuse, a failure to satisfy the notice requirement vitiates the policy (Deso v. London & Lancashire Ind. Co. of America, supra). The burden is on the insured to show that there was a reasonable excuse for the delay (Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons, 31 N.Y.2d 436, 441, 340 N.Y.S.2d 902, 293 N.E.2d 76). Here, PSM demonstrated that Durso had knowledge of the June 19, 1991, accident at the time of its occurrence, yet failed to notify its insurance carrier, PSM, until five months later. No reasonable explanation was offered for the delay in notification. Accordingly, the motion of PSM for summary judgment should have been granted.
MEMORANDUM BY THE COURT.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Decided: April 07, 1997
Court: Supreme Court, Appellate Division, Second Department, New York.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)