TRAVELERS INDEMNITY COMPANY v. Kareem McDonald, etc., et al., Respondents. (2001)

In an action for a judgment declaring, inter alia, that the plaintiff is not obligated to defend and indemnify the defendants John Worthy III, Patricia Worthy, and Michael Worthy in an underlying action entitled McDonald v. Excellent, pending in the Supreme Court, Queens County, under Index No. 3667/95, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), dated September 21, 1999, as denied its cross motion for summary judgment declaring that it is not obligated to defend and indemnify the Worthy defendants in the underlying action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiff is not obligated to defend and indemnify the Worthy defendants in the underlying action.

 Where an insurance policy, such as the one in this case, requires an insured to provide notice of an accident or loss as soon as practicable, such notice must be provided within a reasonable time in view of all of the facts and circumstances (see, Merchants Mut. Ins. Co. v. Hoffman, 56 N.Y.2d 799, 452 N.Y.S.2d 398, 437 N.E.2d 1155).   Providing an insurer with timely notice of a potential claim is a condition precedent, and thus “[a]bsent a valid excuse, a failure to satisfy the notice requirement vitiates the policy” (Security Mut. Ins. v. Acker-Fitzsimons, 31 N.Y.2d 436, 440, 340 N.Y.S.2d 902, 293 N.E.2d 76).   While a good-faith belief of nonliability may excuse or explain a failure to give timely notice, the insured bears the burden of demonstrating that the delay in giving notice was reasonable (see, Interboro Mut. Indem. Ins. Co. v. Mendez, 253 A.D.2d 790, 677 N.Y.S.2d 615).

 The plaintiff established, prima facie, its entitlement to judgment as a matter of law.   In opposition, the excuses offered by the plaintiff's insureds, John Worthy III, Patricia Worthy, and Michael Worthy (hereinafter the insureds), failed to raise a triable issue of fact as to whether the one-year and three-month delay in notifying the plaintiff was reasonable.   There was no evidence of a good-faith belief in nonliability (cf., Merchants Mut. Ins. Co. v. Hoffman, supra).   Further, the excuses asserted to explain the insureds' failure to notify the plaintiff, namely, a good-faith belief that the loss was not covered under the terms of the insurance policy, that notification of their insurance agent was notification of the insurer, and their mistaken belief that their attorney had communicated with the attorney for the injured party, were insufficient as a matter of law to excuse the delay (see, Serravillo v. Sterling Ins. Co., 261 A.D.2d 384, 689 N.Y.S.2d 521;  Horowitz v. Transamerica Ins. Co., 257 A.D.2d 560, 683 N.Y.S.2d 290).

 Further, the injured party did not provide the plaintiff with written notice of the claim (see, Insurance Law § 3420[a][3];  Eveready Ins. Co. v. Chavis, 150 A.D.2d 332, 540 N.Y.S.2d 860).   The plaintiff was not required to cite the injured party's failure to notify it in its disclaimer letter (see, Agway Ins. v. Alvarez, 258 A.D.2d 487, 684 N.Y.S.2d 635).

Accordingly, the plaintiff is entitled to summary judgment, and the matter is remitted for the entry of a judgment declaring that the plaintiff is not obligated to defend or indemnify its insureds in the underlying action (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).