ZELDIN v. INTERBORO MUTUAL INDEMNITY INSURANCE COMPANY (2007)

In an action, inter alia, to recover damages for a bad faith breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated April 28, 2003, which denied her motion for summary judgment on the complaint and granted the defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On March 8, 1998, the plaintiff sustained serious personal injuries when she was a passenger in a vehicle owned and operated by Mikhail Markman, a/k/a Mikhail Markham.   The plaintiff commenced an action to recover damages for personal injuries against Markman, who was insured by a policy issued to him by the defendant, Interboro Mutual Indemnity Insurance Company (hereinafter Interboro).   The applicable limit of the liability policy was $25,000.   On August 5, 1999, after an inquest, the plaintiff obtained a default judgment against Markman in the sum of $2,024,657.53.   Thereafter, Markman assigned all of his rights and claims against Interboro to the plaintiff.   The plaintiff, as Markman's assignee, subsequently commenced this action against Interboro alleging, inter alia, that it committed a bad faith breach of contract by refusing to defend Markman in the underlying lawsuit.

 “Where an insurance policy requires that notice of an occurrence be given promptly, notice must be given within a reasonable time in view of all of the facts and circumstances” (Eagle Ins. Co. v. Zuckerman, 301 A.D.2d 493, 495, 753 N.Y.S.2d 128;  see Merchants Mut. Ins. Co. v. Hoffman, 56 N.Y.2d 799, 801-802, 452 N.Y.S.2d 398, 437 N.E.2d 1155;  Travelers Indem. Co. v. Worthy, 281 A.D.2d 411, 721 N.Y.S.2d 400).   “ 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’ ” (Sayed v. Macari, 296 A.D.2d 396, 397, 744 N.Y.S.2d 509, quoting Security Mut. Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440, 340 N.Y.S.2d 902, 293 N.E.2d 76).  Insurance Law § 3420(a)(3) provides that a notice of claim to an insurer may be made by the insured, the injured person, or any other claimant (see Hazen v. Otsego Mut. Fire Ins. Co., 286 A.D.2d 708, 709, 730 N.Y.S.2d 156;  Eveready Ins. Co. v. Chavis, 150 A.D.2d 332, 333, 540 N.Y.S.2d 860).

 Here, although the plaintiff provided written notice to Interboro by letter dated June 1, 1998, it is undisputed that Markman wholly and inexcusably failed to notify Interboro of the accident in violation of the express requirements of the policy.   Inasmuch as Markman failed to comply with the notice provisions of the policy, he, and therefore the plaintiff, who stands in his shoes for purposes of this action, is estopped from contending that Interboro improperly disclaimed coverage on that basis (see Daus v. Lumbermen's Mut. Cas. Co., 241 A.D.2d 665, 666, 659 N.Y.S.2d 584;  Pipoli v. United States Fid. & Guar. Co., 38 A.D.2d 249, 328 N.Y.S.2d 688).   Significantly, the plaintiff did not commence a declaratory judgment action against Interboro in her capacity as the injured party, seeking a declaration that Interboro was obligated to defend Markman (see Lang v. Hanover Ins. Co., 3 N.Y.3d 350, 354-355, 787 N.Y.S.2d 211, 820 N.E.2d 855).   As a result, any defenses that Interboro might have had against Markman were good as against the plaintiff (see Long Is. Radiology v. Allstate Ins. Co., 36 A.D.3d 763, 830 N.Y.S.2d 192;  Losner v. Cashline, L.P., 303 A.D.2d 647, 648, 757 N.Y.S.2d 91).

 The plaintiff's contention that the language of the policy required Interboro to show prejudice stemming from the lack of notice is raised for the first time on appeal, and thus, is not properly before this court (see Bender v. Peerless Ins. Co., 36 A.D.3d 1120, 1121, 828 N.Y.S.2d 655).

In light of our determination, the plaintiff's remaining contentions have been rendered academic.   Accordingly, the Supreme Court properly granted Interboro's cross motion for summary judgment dismissing the complaint and denied the plaintiff's motion for summary judgment on the complaint.